"1^    '^%    \9b  \q-/ 


Oj^^^ 


8,^^H 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

iift  of 
R.  A.  Lench 


A  SELECTION  OF  CASES  AND 
OTHER  AUTHORITIES 

ON 

CIVIL  PROCEDURE 

IN  ACTIONS  AT  LAW 


BY 

AUSTIN  WAKEMAN  SCOTT 

PROFESSOR  OF  LAW  IN  HARVARD  UNIVER8ITT 


LANGDELL  HALL,  CAMBRIDGE 

PUBLISHED    BY    THE    EDITOR 

1919 


r 


COPYRIGHT,   1915 
3T  AUSTIN  WAKEMAN  SCOTT 


PREFACE 

This  collection  of  cases  and  other  authorities  is  intended 
primarily  for  the  use  of  students  who  are  beginning  the 
study  of  the  law.  About  five  years  ago,  when  the  editor 
began  his  work  as  a  teacher  of  law  in  the  Harvard  Law 
School,  he  decided  to  enlarge  the  course  on  Pleading  in  that 
school  into  a  course  on  Civil  Procedure.  It  seemed  that  it 
would  make  the  subject  easier  for  the  student  to  understand 
if  he  were  shown  how  an  action  is  carried  through  the  courts, 
and  if  he  were  taught  Pleading  in  its  proper  relation  to  the 
other  steps  in  an  action.  In  the  selection  and  arrangement 
of  the  material,  the  editor  has  had  in  mind  the  needs  of  the 
first-year  student  who,  though  familiar  in  a  general  way  \\dth 
parts  of  the  substantive  law,  has  no  knowledge  of  procedure 
except  as  he  may  have  derived  from  the  daily  newspapers 
some  notions  of  legal  forensics.  The  cases  cited  in  the 
footnotes  are  not  for  the  most  part  merely  cumulative. 
They  are  intended  to  suggest  variations  of  the  problems 
presented  in  the  principal  cases,  and  are  adapted  for  use  as 
hypothetical  cases  in  the  class-room. 

The  names  and  arguments  of  counsel  have  been  omitted. 
Other  omissions  are  duly  indicated. 


Austin  Wakeman  Scott. 


Law  School  of  Harvard  University, 
May,  1915. 


306150 


TABLE   OF  CONTENTS 


^iJO^                              CHAPTER   I 
Venue 1 


CHAPTER  II 

Process 14 

Section        I.   Form  of  Process 14 

Section      II.   Service  of  Process 17 

A.  As  a  Basis  of  Personal  Judgment 17 

B,  In  Proceedings  in  Rem  and  Quasi  in  Rem 42 

Section    III.   Return  of  Process  •    .    .J 51 

chapter'  III 

Appearance 57 

CHAPTER  IV 

Forms  of  Action 75 

Section        I.   Actions  at  Common  Law 75 

Section      II.   Actions  under  Modern  Codes  and  Practice  Acts    .  100 

CHAPTER  V 

Parties 112 

Section        I.   Right  to  Sue  and  Liability  to  be  Sued 112 

Section      II.   Joinder  of  Parties     122 

A.  Pkiintiffs 122 

B.  Defendants 143 

CHAPTER  VI 

Pleading 171 

Section        I.    Demurrers 171 

Section      II.    Picas  or  Answers 220 

Section    III.    Recoupment,  Set-off  aiui  Counterclaim 245 

Section     I\'.    Rejilics  or  Replications 253 

Section       V.   Amendments 258 


VT  TABLE   OF    CONTENTS 

CIIAPTKR   VII 

f    V.     Trl^l^ 271 

-V        .V'^ctioii        I.    Tridl.s  at  Xisi  Priu^i  and  at  Bar      271 

■f^  Section      II.    ChaUengcs 272 

/  Section    III.   Right  to  Open  and  Close 290 

"i    Section     I\'.   Demurrer  to  Etddence 298 

Section       V.    Voluntary  Nonsuit  or  Discontinuance 307 

Section     Xl.    CompuUonj  Nonsuit  or  Dismissal  and  Directed 

Verdict 313 

Section   VII.    Argument  atid  Conduct  of  Counsel 349 

Section  VIII.   Instructions  to  the  Jury 356 

Section     IX.   Conduct  and  Deliberations  of  the  Jury 379 

Section       X.    The  Verdict 401 

ciiaiti:r  VIII 

Motion  foh  Nkw  Tiuai 439 

CUAPTKR   IX 

Motions  B.\.sed  on  the  Ple.vdings 404 

Section         I.    Motion  in  Arrest  of  Judgment 494 

Section       II.    Motion  for  Judgment   before  or   notwithstanding 

the  Verdict 515 

CIIAPTKR   X 

JUDfJ.MK.NTS        519 

Section         I.    Form  and  V(didity 519 

Section        II.    h'l  iidition  and  Kidry 535 

Section     III.    Judgments  by  Default 540 

Section      IV.    Judgments  by  Confession      550 

(•il.\l''li;K    \I 

PhOCKKDI.NOH    in    TIIK    TkIAI.   (ill  hi     AFIKU    .)i  IXiMklNT 55G 

(•|i\rii:i;   xii 

The  Enkokckmknt  ok  .Ii  ih;\ii.ni-^  578 

(•iiApri;R  xiii 

TuK  Kkkkct  ok  a  .Ii;ooMKNr  on  ScusKgUENT  Coniuovkilsiks    .  041 


TABLE   OF   CASES 


PAGE 

PAOH 

Abbott  V.  Osgood 

639 

Bray  v.  Raymond 

137 

Ackerson  r.  Erie  Ry.  Co. 

1 

Brigham  v.  Fayerweather 

673 

Adiiins  )'.  Hickman 

572 

Broadstreet  v.  Clark 

611 

Aibroclit  ('.  Long 

604 

Brooke  v.  Brooke 

192 

Allis  I'.  Leonard 

359 

Brower  v.  Smith 

622 

Allured  v.  Voller 

30 

Brown  v.  Bart  let  t 

556 

American  Publishing  Co.  v. 

Brown  v.  McLeish 

534 

Fisher 

401 

Brown  v.  Paterson  Parchment 

Andrews  v.  Blake 

540 

Paper  Co. 

462 

Atchison,  etc.,  Ry.  Co.  v. 

Bruce  v.  Beall 

504 

Cogswell 

475 

Bruheim  v.  Stratton 

105 

.\tkins  /'.  Borstler 

9 

Bruning  v.  Brotherhood  Accident 

Auburn  it  Owasco  Canal  Co.  v. 

Co. 

37 

Leitch 

188 

Brunsden  v.  Humphrey 

645 

.\very  v.  Babcock 

523 

Buck  V.  Little 

534 

Aver  V.  Austin 

293 

Budding  v.  Murdock 

259 

Ayres  v.  Coville 

196 

Burgoyne  v.  Ohio  Life,  etc.,  Co. 

143 

Burnet  v.  Bisco 

204 

Bach  v.  Montana  Lumber  & 

Butcher  v.  Metts                      425,  508 

Produce  Co. 

230 

Bailey  v.  Wright 

614 

Cabanne  v.  Graf 

24 

Baker  v.  Sherman 

495 

Canfield  v.  Tobias 

239 

Bank  of  Genesee  v.  Spencer 

585 

Casey  Pure  Milk  Co.  v.  Booth 

Barber  v.  Vincent 

183 

Fisheries  Co. 

134 

Barclay  v.  Smith 

627 

Central  R.  R.  Co.  ads.  Van  Horn  201 

Barnes  v.  Quigley 

101 

Central  Transportation  Co.  v. 

Barrett  v.  Queen  City  Cycle  Co. 

575 

Pullman's  Car  Co. 

313 

Bates  r.  Chicago,  etc.,  Ry.  Co. 

44 

Centreville  Nat.  Bank  v.  Inman 

573 

Bayley  v.  Buckland 

72 

Chaffee  v.  Rutland  R.  R.  Co. 

498 

Bennett  r.  Preston 

216 

Chambers  v.  Lathrop 

180 

Berman  v.  Clark  Co. 

657 

Chamblee  v.  Cole 

561 

Berry  v.  Dryden 

319 

Chapman  v.  McCormick 

365 

Betts  I-.  Butler 

524 

Cheatham  v.  Roberts 

450 

Birmingham  Iron  Foundn,-  v. 

Chicago,  etc.,  R.  R.  Co.  v. 

Hatfield 

11 

Clausen 

501 

Bishop  ('.  Mugler 

406 

Chicago  City  Ry.  Co.  r.  Mager 

369 

Blessing  V.  McLinden 

148 

Church  I'.  Crossman 

521 

Blevins  v.  Erwin  Cotton  Mills 

2S0 

City  of  New  .Uliany  v. 

Bond  V.  Spark 

481 

McC\ill()ch 

380 

Booth  I'.  Bri.scoe 

132 

City  of  Peoria  r.  Simpson 

160 

Bothwell  V.  Boston  Elevated  Rv 

Clark  t'.  Oregon  Short  Line  R.  R 

Co. 

341 

Co. 

330 

Vlll 


TABLE    OF    CASES 


Clearwater  Mercantile  Co.  v. 

Roberts 
Clough  V.  GoRgins 
Cloyd  r.  Trotter 
Cobb  Chocolate  Co.  v. 

Knudson  352, 

Cogan  ('.  Khilcn 
Coles  V.  Soulshy 
Collins  V.  Whiteside 
Commonwealth  r.  Barry 
Commonwealth  v.  Tuey 
Continental  Nat.  Bank  v. 

ThurlKT 
Corl)ett  V.  Physicians'  Casualty 

/Vss'n 
Cox  V.  High  Point, etc.,  R.  R. Co. 
Covne  V.  Lakeside  Electric  Ry. 

Co. 
Cranston  v.  N.  Y.  Central,  etc., 

R.  R.  Co. 
Craven  v.  Hanley 
Crawford  v.  Beard 
Creighton  v.  Kerr 
Cromwell  v.  Covmty  of  Sac 
Cunningham  i'.  Magoun 
Currier  t'.  Inhabitants  of  Lowell 

Dalrymple  v.  Williams 

Dalton  r.  Tavcmr 

Dana  v.  Tucker 

Darlingy.  New  York, etc.,  R.R.Co. 

Davey  i;.  City  of  Janesville 

Dean  i;.  Ross 

Dc  Armun  v.  Massey 

Do  Kalb  County  i'.  Ilixon 

Df  Uiitzon  ('.  Farr 

I><'tzur  V.  Stroll  Brewing  Co. 

I>e  Vail  V.  Dc  \all 

Diwwway  v.  Iviward.s 

I^KJge  V.  Mc.Mahan 

Dfjc  V.  Tyhrr 

I^owagiuc  Mfg.  (^).  V.  Schnn-dcr 

Doyle  V.  (lore 

I>illl  t;.  Blai-kiiian 

Dy«T  V.  I'liion  K.  It.  Co. 

Kant  India  Co.  •'.  (llovrr 
I'jiMtiiiiiii  r.  ( 'omtniHMionerH  of 
burke  County 


P.\GB 

FAOa 

Eaves  v.  Garner 

602 

34 

iMson  V.  Dillaye 

236 

185 

Eichlin  v.  Holland  Tramway  Co 

173 

49 

Eikenberry  iV-  Co.  v.  Edwards 

633 

Elliot  I'.  WoodhuU 

554 

371 

Everts,  In  re 

480 

414 

Ewing  V.  Goode 

323 

2*21 

427 

Farr  v.  Fuller 

451 

362 

Felton  V.  Dickin.son 

84 

375 

First  Nat.  Bank  v.  St.  Croix 

Boom  Corp. 

175 

31 

Fit  zpat rick  v.  Gebhart 

269 

Fletcher  v.  London,  etc.,  Ry.  Co 

315 

59 

Forte.scue  v.  Holt 

229 

423 

Fox  V.  Smith 

405 

Fox  V.  Star  Newspaper  Co. 

308 

206 

Freeman  v.  Creech 

268 

Freeman  v.  Hyctt 

248 

377 

515 

Gagnon  v.  Dana 

336 

535 

Galloway  v.  Bird 

92 

06 

Galveston,  etc.,  Ry.  Co.  t'. 

659 

Templeton 

301 

458 

Gardner  v.  Buckbce 

663 

538 

Gardner  r.  Picket 

357 

Gardner  v.  Turner 

273 

417 

Gazynski  v.  Colburn 

129 

87 

Ghiradelli  v.  Greene 

180 

399 

Gil)ney  v.  St.  lyouis  Tran.sit  Co. 

439 

393 

Gila  Valley,  etc.,  Ry.  Co.  i;.  Hall  473 

281 

Godfrey  c.  Valentine 

62 

505 

Gowan  r.  Fountain 

587 

42 

Grosvenor  v.  Danforth 

629 

558 

CJummer  v.  Village  of  Omro 

654 

454 

Gund  &  Co.  I'.  Horrigan 

537 

469 

484 

Haggard  v.  Hay's  .Aciin'r 

227 

541 

llaiton  V.  .lelTreys 

IS7 

22.3 

Ilancoek  \;it.  Bank  r.  lOllis 

1S6 

4.')1 

Harden  v.  Alcliis<iii,  elc,  |{.  K. 

4s;» 

Co. 

234 

mn 

Hargis  v.  Morw* 

582 

t)7() 

Harrington  v.  I'lunk.-i  liili 

455 

Mining  Co. 

373 

Harris  v.  Avery 

219 

513 

Harris  v.  Swanstm  iV  Bro. 

139 

Hart  r.  Iloberlson 

13H 

2.H'J 

Hartford  Bank  v.  Cireen 

174 

TABLE    OF    CASES 


IX 


PAGE 

Ilastroi)  V.  Hastings 

245 

llawes  V.  Gustin 

449 

Hazel  V.  Jacobs 

550 

Hefner  v.  Fidler 

85 

Heney  i'.  Chartered  Co.  of 

Lower  Cal. 

2\:i 

Henry  de  liodreugani  c.  Th 

jinas 

le  /Vieedekne 

irv.i 

Herbert  v.  De  Murias 

202 

Hess  V.  Great  Northern  Ry. 

Co. 

490 

Hibshnian  r.  Dulleljan 

G(3G 

Hodf^es  ('.  Easton 

430 

HolTnieier  v.  Trost 

641 

HoHis  ('.  Richardson 

506 

Home  Ins.  Co.  v.  Gihnan 

124 

Hopkins  v.  Ladd 

546 

Hopkins  v.  Railroad 

304 

Howard  v.  Jennison 

256 

Hudson  V.  Scottish  Union  &  Nat 

Ins.  Co. 

isi 

HutTritutler  v.  Louisville  Pac 

king 

Co. 

310 

Hufnagle  v.  Delaware  &  Hudson 

Co. 

277 

Humboldt  Min.  Co.  v.  American, 

etc.,  Co. 

516 

Hunt  ('.  Loucks 

590 

Interior  Construction,  etc.,  Co.  v. 

Gilmey  69 

Jenkins  v.  Steanka  225 
Johason  v.  Pensacola,  etc.,  R.  R. 

Co.  189 

Jones  V.  Spencer  460 
Judah  ('.  Trustees  of  Vincennes 

Univ.  229 

Keller  r.  Johnson  226 

Kelley  r.  Bergen  County  Gas  Co.  316 
Kendall  r.  American  Automatic 

Loom  Co.  39 

Kill  V.  Old  Colony,  etc.,  Ry.  Co.  615 

Kindig  r.  March  554 

Kitchenman  r.  Skeel  509 

Klii)sfein  v.  Raschein  260 

Knap])  I'.  Walker  103 

Knight  V.  Inhaljitants  of  Freeport  388 

Kramer  v.  Kister  409 


PAGE 

Labahn  Brick  Co.  v.  Hecht  530 

Lee  V.  Knapp  544 

Lee  V.  Minneapolis,  etc.,  Ry.  Co.  210 
Le  Fanu  v.  Malcomson  130 

Leggett  V.  Waller  630 

Lester  v.  Stanley  379 

Levitt  V.  O'Rourke  Engineering 

Constr.  Co.  226 

Lienow  v.  Ritchie  89 

Livingston  v.  JefTer.son  3 

Loan  &  Trust  Sav.  Bank  v. 

Stoddard  215, 253 

Lonzer  v.  Lehigh  Valley  R.  R.  Co.  331 
Los  Angeles  County  Bank  i'. 

Raynor  583 

Louisville,  etc.,  R.  R.  Co.  v. 

Beasley  651 

Lycoming  Fire  Ins.  Co.  v.  Wright  193 
Lydecker  v.  St.  Paul  City  Ry.  Co.  176 
Lynch  v.  Freeland  528 


Macurda  v.  Lewiston  Journal  Co. 

203 

Marriage  v.  Electric  Coal  Co. 

354 

Marsh  v.  Bulteel 

194 

Marshall-Wells  Hardware  Co.  v. 

Emde 

222 

Martin  v.  Southern  Ry. 

224 

Mason  v.  Intercolonial  Ry. 

113 

Mathews  V.  Converse 

199 

Matthews  v.  Delaware,  etc.. 

R.  R.  Co. 

157 

Matthews  v.  Tufts 

21 

McCall  V.  Price 

145 

McClure  v.  Logan 

593 

McDonald  v.  Metropolitan  Street 

Ry.  Co. 

324 

McKaj'  V.  Darling 

83 

McMinn  v.  Hamilton 

68 

Mercer  v.  Whall 

290 

Merrill  v.  Perkins 

261 

Middleton  v.  Baker 

298 

Miedreich  c.  Lauenstein 

51 

Mitchell  V.  McNabb 

77 

Mitchell  V.  Roberts 

93 

Mitchell  r.  Tarbutt 

154 

Montgomery,  Jones  &  Co.  v. 

Liel)enthal  it  Co. 

27 

Moore  V.  Hobbs 

171 

Morton  V.  Shaw 

266 

TABLE    OF    CASES 


Murchison  Nat.  Bank  v.  Dunn 

Raymond  Syndicate  r.  Gutteutag 

107 

Uil  Mills  Co. 

•J7S 

Richardson  c.  Wcaro 

435 

Murdock  v.  Sumner 

420 

Risdon  Iron,  etc.,  Works  r. 

Murphy  v.  Holnor  Bros. 

90 

Citizens'  Traction  Co. 

617 

Muri)hy  r.  Hu.-^t'U 

".17 

Rivorsiilc  Land,  etc.,  Co.  r. 

Murray  v.  New  York  Life  Ins. 

Jensen 

669 

Co." 

295 

Robinson  c.  Howard 

650 

Myn  r.  Cole 

233 

Rogers  v.  Cummings 

677 

Russell  t'.  Tomlinson 

156 

Needhani  i'.  Thayer 

17 

Ryley  v.  Parkliur.>=t 

200 

Newell  V.  Ayer 

380 

New  York,  etc.,  R.  R.  Co.  v. 

Sadler  v.  Boston,  etc..  Rubber  Co 

40 

Garrity 

3ry2 

St.  Louis  (t  S.  I"'.  R.  Co.  I'.  Webb 

136 

Nichols  V.  Hooper 

47 

St.  Louis  Car  Co.  v.  Stillwater 

Nichols  I'.  Nichols 

382 

Street  Ry.  Co. 
St.  Paul  Typothetae  v.  St.  Paul 

.57 

Obenchain  v.  Comegj'S 

556 

Bookbinders'  Union 

116 

Oil  Well  Supply  Co.  v.  Koen 

643 

Sanders  v.  Hamilton 

643 

Olsen  v.  Cloijuet  Lumber  Co. 

I'll 

San  Diego  Land,  cti-.,  Co.  v. 

Orient  Ins.  Co.  r.  Northern  Par. 

Ncale 

477 

Ry.  Co. 

238 

Savery  v.  Busick 

456 

Oxley  V.  Watts 

91 

S(!hlicht  V.  State 

184 

Schmidt  v.  Chicago,  etc.,  Ry.  Co. 

275 

Packard  Machinery  Co.  v.  Lacv 

024 

Scott  J'.  Tubbs 

3S9 

Page  V.  Wheeler 

394 

Searle  t^.  Roman  Catliolic  Hi.-^ho]) 

•287 

Parker  v.  Godin 

479 

Sedgworth  v.  Ovcrcnd 

141 

Pearson  v.  Nesbit 

112 

Shallcross  t'.  West  Jcrsej')  etc. 

Pease  v.  Price 

010 

R.  R.  Co. 

242 

Pelican  Ass.  Co.  i'.  American 

Share  v.  Coals 

334 

Feed,  ct*;.,  Co. 

494 

Shaw  I'.  Avelinc 

625 

Penhallow  r.  Dwight 

603 

Sheldon  v.  C'omstock 

53 

Petrie  v.  Hannay 

422 

Sheldon  v.  Root 

619 

Pharis  v.  ( lere 

532 

Shinn  v.  Maci)her8on 

612 

Phillips  V.  South  Western  Ry.  Co. 

467 

Simmons  v.  I'nitcd  States 

358 

PickwfKMl  V.  Wright 

529 

Skinner  Mfg.  Co.  c.  Wright 

299 

Pontifcx  V.  Jolly 

295 

Sladcr's  Ca.se 

457 

Porter's  I./'ssee  i'.  Cocke 

597 

Smith  V.  Crichlon 

366 

Posnett  V.  Marble 

512 

Smith  ('.  ( Jiiison 

20 

Potts  V.  Point  Pleuwint  Land  Co 

.  254 

Smith  r.  SuimiK-rficld 

208 

P(»well  V.  Gott 

503 

Snow  I'.  Chatlicld 

237 

Prui'd  V.  (Jrahain 

405 

Sodousky  v.  McGco 

349 

I'rowcil  r.  Neucnddrf 

4HS 

Sontum  »'.  Mahoning,  etc,  Ry., 

etc.,  Co. 

2()5 

Quuglianu  v.  Jersey  City,  etc., 

Southern  Ry.  Co.  v.  Tyree 

303 

Ry.  Co. 

4  J  3 

Sparrow  v.  Bromage 

482 

Spear  v.  Ilaggarty 

328 

Rjid«-iyfT«*  I'.  Barton 

559 

Spear  v.  Spencer 

282 

Rayiiir)nd  v.  Diiribury,  etc., 

Spencer  v.  Stat*'  of  N«'w  ^'ork 

339 

R.  R.  Co. 

6-17 

Spencer  r  TnriKV  «k  Co. 

232 

TABLE    OF    CASES 


XI 


PAGE 

PAGE 

Si)cncer  v.  Williams 

412 

Vaise  v.  Delaval 

396 

Stacj^  t'.  Kemp 

245 

Van  Deusen  v.  Blum 

79 

Stampofski  v.  Steffens 

441 

Van  Santwood  v.  Sandford 

81 

Starrett  v.  Gault 

122 

State  V.  Murphy 

385 

Walker  v.  Clements 

249 

Steamboat  Pembinaw  v.  Wilson 

115 

Walker  v.  Jones 

85 

Steenerson  r.  Watcrbury 

242 

Wall  I'.  Chesapeake,  etc 

.,  R.  R. 

Stevens  r.  Helm 

571 

Co. 

178 

Streitweiser  v.  Lightbourn 

515 

Waller  v.  Graves 

444 

Struebing  v.  Stevenson 

372 

Weeks  v.  Hart 

404 

Stuekey  v.  Tritsche 

368 

Weldon  v.  Neal 

263 

Sumner  v.  Tileston 

163 

Wheelock  v.  Lee 

71 

Swctt  V.  Southworth 

228 

White  V.  Moquist 

212 

Swift  V.  Moseley 

89 

W^ilbur  V.  Gilmore 
Wilder  v.  Bailey 

648 
621 

Taylor  v.  Barnham  &  Co. 
Taylor  i   Jones 

526 
530 

Willoughby  v.  Willoughby 
Wilson  V.  Rybolt 
Wilson  V.  State 

127 
109 
284 

Templeton  t'.  Wolf 

308 

Wise  V.  Darby 

607 

Thomas  v.  Chapman 

391 

Wood  V.  Faut 

652 

Thoreson  r.  Minneapolis  Har- 

W^ood V.  Gunston 

464 

vester  Works 

657 

Woodward  v.  Dean 

440 

Trotter  r.  Mut.  Reserve  Fund 

Life  Ass'n 

178 

Wrege  v.  Jones 
Wright  V.  Abbott 
Wright  V.  Southern  Ry. 

251 

397 

Trow  )'.  \'illage  of  White  Bear 

471 

Co. 

329 

Trullinger  v.  Webb 

276 

York  V.  Texas 

64 

United  States  v.  Mayer 

565 

Young  V.  Central  R.  R. 

Co. 

340 

CASES  ON  CIVIL   PROCEDURE. 


CHAPTER  I. 

VENUE. 

ACKERSON   V.   ERIE  RAILWAY  COMPANY. 
Supreme  Court  of  New  Jersey.     1865. 

[Reported  31  New  Jersey  Law,  309.] 

The  Chief  Justice  (Beasley).*  This  suit  is  in  tort  for  an  injury 
happening  to  the  plaintiff  from  the  carelessness  of  the  defendants, 
while  a  passenger  in  their  railroad  cars.  The  declaration  is  in  the 
usual  form,  and  it  has  been  answered  by  a  demurrer.  The  point 
of  this  issue  upon  which  a  decision  is  sought  is,  whether  the  plain- 
tiff, as  he  shows  in  his  declaration,  that  the  injuries  received  by 
him  occurred  in  New  York  on  the  railroad  of  the  defendants  there 
situate,  can  sue  on  such  cause  of  action  in  this  state  ? 

As  long  ago  as  1G65,  it  was  certified  by  the  twelve  judges,  that 
for  torts  to  the  person  and  to  personal  property  done  out  of  the 
realm,  a  remedy  lay  in  a  suit,  in  personam,  in  England;   but  that 
for  torts  to  real  property  situate  abroad,  no  suit  would  lie.     Cited 
in  Mostyn  v.  Fabrigas,  Cowp.  R.  180.     A  few  years  later  it  was 
decided  in  affirmance  of  this  doctrine  in  the  case  of  Rafael  v.  Verelst, 
2  Wm.  Black.  1055,  that  an  action  for  an  alleged  unlawful  imprison- 
ment of  the  defendant  in  India  was  well  brought,  the  court  saying, 
in  reply  to  the  objection  of  want  of  jurisdiction,  that  "  personal 
injuries  are  of  a  transitory  nature  and  scquuntur  Forum  Rei."    ^^ 
From  the  time  of  these  decisions  to  the  present,  it  is  beheved  that    '^j 
the  doctrine  thus  enunciated  has  never  been  called  in  question  by  u  •... 
any  English  judge. 

Nor  does  the  rule  of  the  common  law  differ  in  this  respect,  with 
that  which  is  enforced  in  the  law  of  nations.  It  is,  in  the  interna- 
tional code,  the  well  established  doctrine,  that  every  nation  may 

>  The  statement  of  facts  and  the  concurring  opinion  of  Haines,  J.,  are 

omitted.  —  Ed. 

1 


I  VENUE 

rightfully  exercise  jurisdiction  over  all  persons  within  its  domains, 
with  regard  to  matters  purely  personal;  and  Judge  Story  remarks 
that,  in  England  and  America,  "  suits  are  maintainable  and  are 
constantly  maintained  between  foreigners,  where  either  of  them  is 
within  the  territory  of  the  state  in  which  the  suit  is  brought." 
Conflt.  of  Laws,  §  542. 

The  same  view  of  the  law  received  judicial  sanction  in  the  fol- 
lowing cases.  Glen  v.  Hodges,  9  Johns.  67;  Gardiner  v.  Thomas, 
14  Johns.  134 ;  Flower  v.  Allen,  5  Cow.  654;  Smith  v.  Bull,  17  Wend. 
324;  Barren  v.  Benjamin,  15  Mass.  354. 

And  in  this  state,  it  is  believed,  the  practice  has  accorded  with 
the  doctrine  illustrated  by  the  cases  above  cited.  If  the  point  had 
been  considered  as  at  all  in  doubt,  it  is  highly  improbable  that  it 
would  have  escaped  the  attention  of  the  experienced  counsel  who 
acted  for  the  defence,  in  the  important  case  of  The  American  Print 
Works  V.  Lawrence,  1  Zab.  248. 

The  plaintiff  is  entitled  to  judgment  on  this  demurrer.^ 

^  The  result  is  the  same  where  the  cause  of  action  is  statutory.  Dennick 
V.  Raih-oad  Co.,  103  U.  S.  11,  26  L.  ed.  439;  Texas  &  Pacific  Ry.  Co.  v.  Cox, 
145  U.  S.  593,  36  L.  ed.  829,  12  S.  Ct.  905;  Burns  v.  G.  R.  &  I.  R.  R.  Co., 
113  Ind.  169,  15  N.  E.  230;  Higgins  v.  Central,  etc.,  R.  R.  Co.,  155  Mass.  176, 
29  N.  E.  534;  McLeod  v.  Conn.  &  Pass.  R.  R.  R.  Co.,  58  Vt.  727,  6  Atl.  648; 
Nelson  v.  C.  &  O.  R.  R.  Co.,  88  Va.  971,  14  S.  E.  838.  But  compare  Mexican 
National  Ry.  Co.  v.  Jackson,  89  Tex.  107,  33  S.  W.  857,  31  L.  R.  A.  276;  De 
Herrera  v.  Texas,  Mexican  Ry.  Co.  (Tex.  Civ.  App.,  1913),  154  S.  W.  594. 

The  mere  fact  that  one  party  is  a  non-resident  individual  or  corporation, 
or  that  both  parties  are  non-resident  individuals  or  corporations,  does  not  pre- 
clude a  recovery.  Rafael  v.  Verelst,  2  Wm.  Bl.  1055;  Reeves  v.  Southern  Ry. 
Co.,  121  Ga.  561,  49  S.  E.  674,  70  L.  R.  A.  513;  Rice  v.  Brown,  81  Me.  56,  16 
Atl.  334;  Peabody  v.  Hamilton,  106  Mass.  217;  Pullman  Palace  Car  Co.  v. 
Lawrence,  74  Miss.  782,  22  So.  53;  Wertheim  v.  Clergue,  53  N.  Y.  App.  Div. 
122,  65  N.  Y.  Supp.  750.  But  see  Matthaei  v.  Galitzin,  L.  R.  18  Eq.  340; 
Gardner  v.  Thomas,  14  Johns.  (N.  Y.),  134;  Anglo-American  Provision  Co.  v. 
Davis  Provision  Co.,  169  N.  Y.  506,  62  N.  E.  587, 88  Am.  St.  Rep.  608,  affirmed 
191  U.  S.  373,  48  L.  ed.  225,  24  S.  Ct.  92  (statutory  rule  as  to  actions  against 
foreign  corporations);  Collard  v.  Beach,  81   N.  Y.  App.  Div.  582,  81  N.  Y. 

ft  jLi-     V   Supp.  619. 
^  trVyXJ^AXH  ;  .But  the  courts  of  one  state  will  not  enforce  penal  obhgations  created  in 
j^  Jh  another  state;  nor  will  they  enforce  obligations  which  are  contrary  to  domestic 

A*  ^  policy.     See  Beale,  Cases  on  Conflict  of  Laws,  vol.  iii,  pp.  402  ct  seq.     On  the 

-V  question  how  far  they  will  attempt  to  regulate  the  internal  affairs  of  a  foreign 

corporation,  see  Beale,  P^'oreign  Corporations,  Chap.  XIII.  —  Ed. 


JU 


jj*A<r^>^ 


LrV^INGSTON   V.   JEFFERSON 


LIVINGSTON  V.  JEFFERSON. 

Circuit  Court  of  the  United  States,  District  of 
Virginia.     1811. 

[Reported  1  Brockenbrough,  203.]  ^ 

This  was  an  action  of  trespass,  brought  in  the  circuit  court  of 
the  United  States,  for  the  district  of  Virginia,  by  Edward  Living- 
ston, a  citizen  of  the  state  of  New  York,  against  Thomas  Jefferson, 
a  citizen  of  the  state  of  Virginia,  and  late  President  of  the  United 
States.  .  .  . 

The  declaration  contained  eight  counts.  The  first  count 
charged,  that  the  defendant,  on  the  25th  day  of  January,  1808,  at 
the  city  of  New-Orleans,  in  the  district  of  Orleans,  to  wit,  at  Rich- 
mond, in  the  county  of  Henrico,  and  district  of  Virginia,  with  force 
and  arms,  broke  and  entered  a  certain  close  of  the  plaintiff.  The 
defendant  pleaded  to  the  jurisdiction  of  the  court  that  the  said 
close  was  situated  in  the  territory  of  Orleans  and  outside  the 
I  district  of  Virginia.  The  plaintiff  replied  that  the  defendant  was 
*jnot  a  resident  of  the  territory  of  Orleans  and  was  not  amenable] 
to  the  jurisdiction  of  the  courts  of  that  territory.  To  this  replica- 
tion the  defendant  demurred  generally,  and  the  plaintiff  joined  in 
demurrer.2 

Marshall,  C.  J.  —  The  sole  question  in  this  case  is: —  Can 
this  Court  take  cognizance  of  a  trespass  committed  on  lands  lying 
within  the  United  States  and  without  the  Commonwealth  of  Vir- 
ginia, in  a  case  where  the  trespasser  is  a  resident  of,  and  is  found 
wdthin,  the  district  ?  I  concur  with  my  brother  judge  in  the  opin- 
ion, that  it  cannot. 

I  regret,  that  the  inconvenience  to  which  delay  might  expose  at 
least  one  of  the  parties,  together  with  the  situation  of  the  Court, 
will  not  admit  of  my  bestowing  on  this  question,  that  deliberate 
consideration  which  the  very  able  discussion  it  has  received  at  the 
bar  would  seem  to  require;  but  I  have  purposely  avoided  any  in- 
vestigation of  the  subject  previous  to  the  argument,  and  must  now 
content  mj^self  wath  a  brief  statement  of  the  opinion  I  have  formed, 
and  a  sketch  of  the  course  of  reasoning  which  has  led  to  it. 

This  doctrine  of  actions,  local  and  transitory,  has  been  traced  up 
to  its  origin  in  the  common  law,  and,  as  has  been  truly  stated  on 

1  Reported  also  Fed.  Cas.  No.  8411.  — Ed. 
*  The  statement  of  facts  is  abridged.  —  Ed. 


4  VENUE 

both  sides,  it  appears,  that,  originally,  all  actions  were  local ;  that 
is,  that  according  to  the  principles  of  the  common  law,  every  fact 
must  be  tried  by  a  jury  of  the  vicinage.  The  plain  consequence  of 
this  principle  was,  that  those  courts  only  could  take  jurisdiction 
of  a  case  who  were  capable  of  directing  such  a  jury  as  must  try  the 
material  facts  on  which  their  judgment  would  depend.  The  juris- 
diction of  the  courts,  therefore,  necessarily  became  local  with  re- 
spect to  every  species  of  action. 

But  the  superior  courts  of  England  having  power  to  direct  a 
jury  to  every  part  of  the  kingdom,  their  jurisdiction  could  be  re- 
strained by  this  principle,  only  to  cases  arising  on  transactions 
which  occurred  within  the  realm.  Being  able  to  direct  a  jury 
either  to  Surrey  or  Middlesex,  the  necessity  of  averring  in  the 
declaration,  that  the  cause  of  action  arose  either  in  Surrey  or  Mid- 
dlesex, could  not  be  produced  in  order  to  give  the  court  jurisdiction, 
but  to  furnish  a  venue.  For  the  purpose  of  jurisdiction,  it  would, 
unquestionably,  be  sufficient  to  aver,  that  the  transaction,  out  of 
which  the  cause  of  action  arose,  occurred  within  the  realm. 

This,  however,  being,  not  a  statutory  regulation,  but  a  principle 
of  unwritten  law,  which  is  really  human  reason  applied  by  courts, 
not  capriciously,  but  in  a  regular  train  of  decisions,  to  human 
affairs,  for  the  promotion  of  the  ends  of  justice;  according  to  the 
circumstances  of  the  nation,  the  necessity  of  the  times,  and  the 
general  state  of  things,  was  thought  susceptible  of  modification; 
and  judges  have  modified  it.  They  have  not  changed  the  old  prin- 
ciple as  to  form.  It  is  still  necessary  to  give  a  venue,  and  where 
the  contract  exhibits  on  its  face  evidence  of  the  place  where  it  was 
made,  the  party  is  allowed  to  aver  that  such  place  is  in  any  county 
in  England. 

This  is  known  to  be  a  fiction.  Like  an  ejectment,  it  is  the  creat- 
ure of  the  courts,  and  is  moulded  to  the  purposes  of  justice,  accord- 
ing to  the  views  which  its  inventors  have  taken  of  its  capacity  to 
effect  those  purposes.  It  is  not,  however  of  undefinable  extent. 
It  has  not  absolutely  prostrated  all  distinctions  of  place,  but  has 
certain  limits  prescribed  to  it,  founded  in  reasoning,  satisfactory  to 
those  who  have  gradually  fixed  those  limits.  It  may  well  be 
doubted  whether,  at  this  day,  they  might  be  changed  by  a  judge 
not  perfectly  satisfied  with  their  extent. 

This  fiction  is  so  far  protected  by  its  inventors,  that  the  aver- 
ment is  not  traversable  for  the  purpose  of  defeating  an  action  it 
was  invented  to  sustain,  but  it  is  traversable  whenever  such  tra- 
verse may  be  essential  to  the  merits  of  the  cause.      It  is  always 


LIVINGSTON    V.   JEFFERSON  5 

traversable  for  the  purpose  of  contesting  a  jurisdiction  not  intended 
to  be  protected  by  the  fiction. 

In  the  case  at  bar,  it  is  [^versed]  for  that  purpose;  and  the 
question  is,  whether  this  is  a  case  in  wnich  such  traverse  is  sustain- 
able ?  or,  in  other  words,  whether  the  courts  have  so  far  extended 
their  fiction,  as,  by  its  aid,  to  take  cognizance  of  actions  of  trespass 
on  lands  not  lying  within  those  limits  which  bound  their  process  ? 

They  have,  without  legislative  aid,  applied  this  fiction  to  all 
personal  torts,  wherever  the  wrong  may  have  been  committed,  and 
to  all  contracts,  wherever  executed.  To  this  general  rule,  con- 
tracts respecting  lands  form  no  exception.  It  is  admitted,  that 
on  a  contract  respecting  lands,  an  action  is  sustainable  wherever 
the  defendant  may  be  found.  Yet  in  such  a  case,  every  difficulty 
may  occur  that  presents  itself  in  an  action  of  trespass.  An  inves- 
tigation of  title  may  become  necessary,  a  question  of  boundary  may 
arise,  and  a  survey  may  be  essential  to  the  full  merits  of  the  cause. 
Yet  these  difficulties  have  not  prevailed  against  the  jurisdiction  of 
the  court.  They  are  countervailed,  and  more  than  countervailed, 
by  the  opposing  consideration,  that  if  the  action  be  disallowed,  the 
injured  party  may  have  a  clear  right  without  a  remedy,  in  a  case 
where  a  person  who  has  done  the  wrong,  and  who  ought  to  make 
the  compensation,  is  within  the  power  of  the  court. 

That  this  consideration  should  lose  its  influence  where  the  action 
pursues  a  thing  not  in  the  reach  of  the  court,  is  of  inevitable  neces- 
sity; but  for  the  loss  of  its  influence  where  the  remedy  is  against 
the  person,  and  is  within  the  power  of  the  court,  I  have  not  yet 
discerned  a  reason,  other  than  a  technical  one,  which  can  satisfy 
my  judgment. 

If,  however,  this  technical  reason  is  firmly  established,  if  all 
other  judges  respect  it,  I  cannot  venture  to  disregard  it. 

The  distinction  taken  is,  that  actions  are  deemed  transitory, 
where  the  transactions  on  which  they  are  founded,  might  have 
taken  place  any  where;  but  are  local,  where  their  cause  is  in  its 
nature,  necessarily  local. 

If  this  distinction  is  established;  if  judges  have  determined  to 
carry  their  innovation  on  the  old  rule  no  further;  if,  under  circum- 
stances which  have  not  changed,  they  have  determined  this  to  be 
the  Hmit  of  their  fiction,  for  a  long  course  of  time,  it  would  require 
a  hardihood,  which,  sitting  in  this  place,  I  cannot  venture  on,  to 
pass  this  limit. 

This  distinction  has  been  repeatedly  taken  in  the  books,  and  is 
recognized  by  the  best  elementary  writers,  especially  by  Judge 


6  VENUE 

Blackstone,  from  whose  authority  no  man  will  lightly  dissent. 
He  expressly  classes  an  action  of  trespass  on  lands,  with  .  those 
actions  which  demand  their  possession,  and  which  are  local;  and 
makes  those  actions,  only,  transitory,  that  are  brought  on  occur- 
rences, which  might  happen  any  where.  From  the  cases  that 
support  this  distinction,  no  exception,  I  believe,  is  to  be  found 
among  those  that  have  been  decided  in  Court  on  solemn  argument. 

One  of  the  greatest  judges  who  ever  sat  upon  any  bench,  and 
who  has  done  more  than  any  other,  to  remove  those  technical 
impediments  which  grew  out  of  a  different  state  of  society,  and  too 
long  continued  to  obstruct  the  course  of  substantial  justice,  was  so 
struck  with  the  weakness  of  the  distinction  between  taking  juris- 
diction in  cases  of  contracts  respecting  lands,  and  of  torts  com- 
mitted on  the  same  lands,  that  he  attempted  to  abolish  it.  In  the 
case  of  Mostyn  v.  Fabrigas,  1  Cowper,  161,  Lord  Mansfield  stated 
the  true  distinction  to  be,  between  proceedings  which  are  in  rem, 
in  which  the  effect  of  the  judgment  cannot  be  had,  unless  the  thing 
lay  within  the  reach  of  the  court,  and  proceedings  against  the 
person,  where  damages  only  are  demanded.  But  this  opinion  was 
given  in  an  action  for  a  personal  wrong,  which  is  admitted  to  be 
transitory.  It  has  not,  therefore,  the  authority  to  which  it  would 
be  entitled,  had  this  distinction  been  laid  down  in  an  action  deemed 
local,  and  may  be  termed  an  obiter  dictum.  He  recites,  in  that 
opinion,  two  cases  decided  by  himself,  in  which  an  action  was  sus- 
tained for  trespass  on  lands  lying  in  the  foreign  dominions  of  his 
Britannic  Majesty.  But  both  those  decisions  were  at  nisi  prius, 
and  though  the  overbearing  influence  of  Lord  Mansfield  might 
have  sustained  them  on  a  motion  for  a  new  trial,  that  motion  never 
was  made,  and  the  principle  did  not  obtain  the  sanction  of  the 
court.  In  a  subsequent  case  reported  in  4th  Durnford  and  East, 
p.  503,  [Doulson  v.  Matthews]  (1792),  these  decisions  are  expressly 
referred  to  and  overruled,  and  the  old  distinction  is  affirmed. 

It  has  been  said  that  the  decisions  of  British  courts  made  since 
the  Revolution,  are  not  authority  in  this  country.  I  admit  it. 
But  they  are  entitled  to  that  respect  which  is  due  to  the  opinions 
of  wise  men,  who  have  maturely  studied  the  subject  they  decide. 
Had  the  regular  course  of  decisions,  previous  to  the  Revolution, 
been  against  the  distinction  now  asserted,  and  had  the  old  rule 
been  overthrown  by  adjudications  made  subsequent  to  that 
event,  this  Court  might  have  felt  itself  bound  to  disregard  them; 
but  where  the  distincition  is  of  ancient  date,  has  been  long  pre- 
served, and  a  modern  attempt  to  overrule  it  has  itself  been  over- 


LIVINGSTON  V.   JEFFERSON  7 

ruled  since  the  Revolution,  I  can  consider  the  last  adjudication  in 
no  other  hght  than  as  the  true  declaration  of  the  ancient  rule. 

According  to  the  common  law  of  England,  then,  the  distinction 
taken  by  the  defendants,  between  actions  local  and  transitory,  is 
the  true  distinction,  and  the  action  of  trespass,  quare  clausum  f regit, 
is  a  local  action. 

This  common  law  has  been  adopted  by  the  legislature  of  Vir- 
ginia. Had  it  not  been  adopted,  I  should  have  thought  it  in  force. 
When  our  ancestors  migrated  to  America,  they  brought  with  them 
the  common  law  of  their  native  country,  so  far  as  it  was  applicable 
to  their  new  situation,  and  I  do  not  conceive  that  the  Revolution, 
would,  in  any  degree,  have  changed  the  relations  of  man  to  man, 
or  the  law  which  regulated  those  relations.  In  breaking  off  our 
political  connexion  with  the  parent  state,  we  did  not  break  off  our 
connexion  with  each  other.  It  remained  subject  to  the  ancient 
rules,  until  those  rules  should  be  altered  by  the  competent 
authority. 

But  it  has  been  said,  that  this  rule  of  the  common  law  is,  im- 
phedly,  changed  by  the  act  of  assembly,  which  directs  that  a  jury 
shall  be  summoned  from  the  by-standers. 

Were  I  to  discuss  the  effects  of  this  act  in  the  courts  of  the  state, 
the  inquiry,  whether  the  fiction  already  noticed,  was  not  equiva- 
lent to  it  in  giving  jurisdiction,  would  present  itself.  There  are, 
also,  other  regulations,  as  that  the  jurors  should  be  citizens,  which 
would  deserve  to  be  taken  into  view.  But  I  postpone  these  con- 
siderations, because  I  am  decidedly  of  opinion,  that  the  jurisdiction 
of  the  courts  of  the  United  States  depends,  exclusively,  on  the  Con- 
stitution and  laws  of  the  United  States. 

In  considering  the  jurisdiction  of  the  circuit  courts,  as  defined  in 
the  judicial  act,  and  in  the  Constitution,  which  that  act  carries 
into  execution,  it  is  worthy  of  observation,  that  the  jurisdiction  of 
the  court  depends  on  the  character  of  the  parties,  and  that  only 
the  court  of  that  district  in  which  the  defendant  resides,  or  is  found, 
can  take  jurisdiction  of  the  cause.  In  a  court  so  constituted,  the 
argument  drawn  from  the  total  failure  of  justice,  should  a  trespasser 
be  declared  to  be  only  amenable  to  the  court  of  that  district  in 
which  the  land  lies,  and  in  which  he  will  never  be  found,  appeared 
to  me  to  be  entitled  to  peculiar  weight.  But  according  to  the 
course  of  the  common  law,  the  process  of  the  court  must  be  exe- 
cuted, in  order  to  give  it  the  right  to  try  the  cause,  and,  conse- 
quently, the  same  defect  of  justice  might  occur.  Other  judges 
have  felt  the  weight  of  this  argument,  and  have  struggled  ineffec- 


8  VENUE 

tually  against  the  distinction  which  produces  the  inconvenience  of 
a  clear  right  without  a  remedy.     I  must  submit  to  it. 

The  law,  upon  the  demurrer,  is  in  favour  of  the  defendant.^ 

1  In  the  following  cases  in  which  the  cause  of  action  arose  outside  the  juris- 
diction where  the  Buit  was  brought,  the  plaintiff  was  precluded  from  recovering, 
on  the  ground  that  the  action  was  local.  British  South  Africa  Co.  v.  Compan- 
hia  de  Mogambique,  (1893)  A.  C.  602  (trespass  to  land);  Clark  v.  Scudder, 
6  Gray  (Mass.),  122  (action  on  a  covenant  running  with  the  land  brought  by 
an  assignee  of  the  covenantee);  Reams  v.  Sinclair,  88  Neb.  738,  130  N.  W.  662 
(partition  proceedings);  White  v.  Sanborn,  6  N.  H.  220  (action  on  a  covenant 
running  with  the  land  brought  by  an  assignee  of  the  covenantee);  Karrw. 
New  York  Jewell  Filtration  Co.,  78  N.  J.  L.  198,  73  Atl.  132  (excavation 
causing  subsidence  of  adjoining  land);  Am.  U.  T.  Co.  v.  Middleton,  80  N.  Y. 
408  (cutting  timber  when  one  inseparable  trespass) ;  Brisbane  v.  P.  R.  R.  Co., 
205  N.  Y.  431,  98  N.  E.  752,  44  L.  R.  A.  (n.s.),  274  (negUgently  setting  fire 
resulting  in  destruction  of  trees). 

In  the  following  cases,  on  the  other  hand,  the  plaintiff  recovered,  because 
the  action  was  held  to  be  transitory.  Hodges  v.  Hunter  Co.,  61  Fla.  280,  54 
So.  811,  34  L.  R.  A.  (n.s.),  994  (conversion  of  timber);  Campbell  v.  W.  M. 
Ritter  Lumber  Co.,  140  Ky.  312,  131  S.  W.  20,  140  Am.  St.  Rep.  385  (action 
brought  by  lessor  against  lessee  for  waste);  Little  v.  Chicago,  etc.,  Ry.  Co.,  65 
Minn.  48, 67  N.  W.  846, 60  Am.  St.  Rep.  421,  33  L.  R.  A.  423  (neghgently  setting 
fire  resulting  in  injury  to  land;  rejecting  the  whole  doctrine  of  Living- 
ston V.  Jefferson;  see  Peyton  v.  Desmond,  129  Fed.  1,  63  C.  C.  A.  651); 
Phelps  V.  Decker,  10  Mass.  267  (acti')n  brought  by  covenantee  on  covenant 
in  a  deed  conveying  land);  Corporation  of  N.  Y.  v.  Dawson,  2  Johns.  Cas. 
(N.  Y.),  335  (use  and  occupation);  Jackson  v.  Hanna,  53  N.  C.  188  (action 
brought  by  covenantee  on  covenant  in  a  deed  conveying  land);  Brady  v. 
Brady,  161  N.  C.  324,  77  S.  E.  235,  44  L.  R.  A.  (n.s.),  279  (proceeds  of  the  sale 
of  timber  wrongfully  cut);  Henwood  v.  Cheeseman,  3  Serg.  &  R.  (Pa.),  500  (use 
and  occupation) ;  Sheppard  i;.  Coeur  D'Alene  Lumber  Co.,  62  Wash.  12,  112 
Pac.  932,  44  L.  R.  A.  (n.s.),  267  (use  and  occupation). 

It  has  been  held  that  a  statute  making  local  actions  transitory  does  not 
apply  to  actions  arising  outside  the  jurisdiction.  British  South  African  Co. 
V.  Companhia  de  Mogambique,  supra;  Allin  v.  Conn.  R.  L.  Co.,  150  Mass.  560, 
23  N.  E.  581  (action  for  trespass  to  land  commenced  by  trustee  process). 
Compare  Cragin  v.  Lovell,  PS  N.  Y.  258  (action  for  waste).  The  opposite 
result  was  reached,  however  in  Coleman  v.  Lucksinger,  224  Mo.  1,  123  S.  W. 
441,  26  L.  R.  A.  (n.s.),  934  faction  on  covenant  running  with  the  land  brought 
by  assignee  of  covenantee) ;  Tillotson  v.  Prichard,  60  Vt.  94, 14  Atl.  302,  6  Am. 
St.  Rep.  95  (Uke  preceding  case). 

Where  an  act  is  done  ir»  one  state  which  results  in  injvuy  to  land  in  another 
state  an  action  hes  in  the  former  as  well  as  in  the  latter  state.  Smith  v.  South- 
ern Ry.  Co.,  136  Ky.  162,  123  S.  W.  078,  26  L.  R.  A.  (n.s.),  927;  Mannville  Co. 
V.  Worcester,  138  Mass.  89,  52  Am.  Rep.  261. 

On  the  question  of  waiver  of  the  objection  that  the  action  is  local  and  arose 
outside  the  jurisdiction,  see  Sentenis  v.  Ladew,  140  N.  Y.  463,  35  N.  E.  650. 
—  Ed. 


ATKINS   V.    BORSTLER  y 

ATKINS   V.   BORSTLER  et  al. 

Supreme  Court  of  Michigan.     1881. 

[Reported  46  Michigan,  552.] 

Campbell,  J.'  Plaintiff  who  resides  in  Mecosta  county,  sued 
defendants,  who  reside  in  another  State,  on  contract,  the  suit  being 
brought  in  Kent  county  and  service  made  there.  Defendants 
pleaded  in  JaHatenientyshowing  their  non-residence  and  that  of 
plaintiff,  an'3  claming  that  under  our  statutes  they  could  only  be 
sued  in  Mecosta.  On  demurrer  this  plea  was  sustained,  and  plain- 
tiff brings  error. 

It  was  held  in  Haywood  v.  Johnson,  41  Mich.  598,  that  a  resident         ,    . 
of  the  State  could  not  be  sued  in  a  transitory  action  in  a  county   y^^^ti^xT^ 
where  neither  party  resided.      It  was  held  in  Turrill  v.  Walker,  4  'J^o^f  ^  -^ 
Mich.  177,  that  the  circuit  courts  could  get  no  jurisdiction  unless-^-'  -f^^y^ 
one  defendant  is  served  in  the  county.     It  results  from  these  ^y^-^-^  -^ 
decisions  that  a  suit  in  Mecosta  would  have  been  fruitless  unless  a   -^''^^^  ^^ 
defendant  should  be  found  there,  and  that  unless  a  suit  can  be 
brought  where  a  non-resident  defendant  is  found,  he  cannot  be 
sued  at  all,  in  many  cases,  and  could  not  have  been  in  this  case. 

Rehance  is  had  by  defendants  on  section  5970  of  the  Compiled 
Laws  of  1871,  which  requires  transitory  actions  to  be  tried  in  the 
county  "  where  one  of  the  parties  shall  reside  at  the  time  of  com- 
mencing such  action."  This  was  held  in  Haywood  v.  Johnson,  to 
require  suits  to  be  commenced  in  such  county.  And  if  the  sec- 
tion applies  to  non-residents  of  the  State,  the  decision  below  was 
correct.  But  if  correct  it  follows  that  there  are  many  transitory 
actions  on  contract,  as  well  as  in  tort,  where  such  persons  can  al- 
ways evade  the  justice  of  this  State  by  keeping  away  from  counties 
where  their  creditors  reside.  The  Constitution  gives  jurisdiction 
without  any  exception,  in  such  cases,  to  the  circuit  courts.  It 
would  not  be  competent  for  the  Legislature  to  take  it  away.  And 
if  the  statute  in  question  would  have  any  such  effect  according  to 
its  ordinary  meaning  we  are  compelled  to  choose  between  holding 
it  to  that  extent  void,  or  construing  it  according  to  what  was  no 
doubt  its  real  intent,  as  not  applicable  here. 

We  have  no  doubt  the  section  in  question  was  intended  to  be  a 
beneficial  section  in  the  direction  of  saving  defendants  from  vexa- 
tious suits  in  places  remote  from  their  homes.      It  accordingly 

^  The  statement  of  facts  is  omitted.  —  Ed, 


10  VENUE 

saved  them  the  privilege  of  being  sued  at  home,  or  in  the  home 
county  of  the  plaintiff,  who  was  regarded  as  entitled  also  to  some 
consideration.  It  is  evident  that  in  so  legislating  the  law-makers 
had  no  idea  of  granting  a  privilege  to  non-residents  against  being 
sued  at  all.  The  natural  inference  is  that  those  who  were  entitled 
to  be  sued  in  the  forum  of  their  residence,  are  persons  whose  resi- 
dence contains  one  of  the  courts  of  the  State ;  so  that  suits  may  be 
brought  under  our  laws.  The  language  of  the  statute  only  applies 
to  trials  of  actions  brought  under  our  laws ;  and  if  any  case  arises 
under  our  laws  it  would  be  absurd  to  hold  that  the  Legislature 
meant  to  say  it  should  not  be  tried  at  all.  Those  who  claim  the 
privilege  must  point  out  a  Michigan  forum  where  they  can  be  found 
for  service  of  process.     The  statute  applies  to  no  others. 

This  has  been  the  uniform  practical  construction,  and  this  is  the 
first  case  brought  to  our  notice,  in  which  any  non-resident  defend- 
ant has  claimed  exemption  from  process.  This  practical  construc- 
tion of  nearly  forty  years  cannot  be  disregarded.  We  think  that 
the  case  is  not  within  the  statute,  and  that  service  on  the  defend- 
ants in  any  county  of  this  State  is  valid  when  suit  was  commenced 
in  that  county. 

Judgment  must  be  reversed  with  costs  of  both  courts  and  the 
demurrer  sustained,  with  leave  to  defendants  to  answer  over  and 
plead  issuably  in  twenty  days. 

The  other  Justices  concurred.^ 

1  In  the  case  of  actions  arising  within  the  state  the  common  law  distinction 
between  local  and  transitory  actions  was  early  rejected  in  some  jurisdictions 
as  a  result  of  construction  of  statutory  or  constitutional  provisions.  Genin  v. 
Grier,  10  Oh.  209. 

The  law  as  to  the  venue  or  place  of  trial  when  the  cause  of  action  has  arisen 
within  the  state  is  now  largely  regulated  by  express  statutory  provisions  in  the 
several  states.  These  statutes  fix  the  venue  in  some  cases  at  the  situs  of  the 
subject  of  the  action,  in  others  at  the  place  where  the  cause  of  action  arose,  in 
others  at  the  residence  of  a  party. 

In  cases  where  the  venue  depends  upon  the  residence  of  the  parties,  the 
statutes  generally  make  express  provision  for  cases  where,  as  in  the  principal 
case,  the  defendant  is  a  non-resident.  See  the  statutes  of  the  several  states 
and  40  Cyc.  102. 

The  New  York  Code  of  Procedure,  1849,  contained  the  following  provisions 
as  to  the  place  of  trial  of  civil  actions:  — 

"  Sec.  12.3.  Actions  for  the  following  causes,  must  be  tried  in  the  coimty 
in  which  the  subj(!ct  of  the  action  or  some  part  thereof  is  situated,  subject  to 
the  power  of  the  court  to  change  the  place  of  trial,  in  the  cases  provided  by 
statute. 

"  1.    For  the  recovery  of  real  property  or  of  an  estate  or  interest  therein,  or 


BIRMINGHAM    IRON    FOUNDRY   V.    HATFIELD  11 

BIRMINGHAM   IRON   FOUNDRY  v.   HATFIELD. 
Court  of  Appeals  of  New  York.     1870. 

[Reported  43  New  York,  224.] 

Appeal  from  the  judgment  of  the  General  Term  of  the  Supreme 
Court  in  tlie  second  judicial  district,  affirming  the  judgment  of  the 
Special  Term. 

This  is  an  action  brought  for  the  foreclosure  of  a  mortgage  made 
and  delivered  to  the  plaintiff  by  the  defendants,  John  W.  Hatfield 
and  wife. 

The  venue  was  laid  in  Queens  county,  and  the  case  was  on  the 
calendar  in  that  county  in  October,  1867.     The  court,  for  its  own 

for  the  determination,  in  any  form,  of  such  right  or  interest,  and  for  injui'ies  to 
real  property : 

"2.    For  the  partition  of  real  property: 

"  3.   For  the  foreclosure  of  a  mortgage  of  real  property: 

"  4.   For  the  recovery  of  personal  property,  distrained  for  any  cause. 

"  Sec.  124.  Actions  for  the  following  causes,  must  be  tried  in  the  county 
where  the  cause  or  some  part  thereof  arose,  subject  to  the  like  pov/er  of  the 
court,  to  change  the  place  of  trial  in  the  cases  provided  by  statute: 

"1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  statute;  except, 
that  when  it  is  imposed  for  an  offence  committed  on  a  lake,  river,  or  other 
stream  of  water,  situated  in  two  or  more  counties,  the  action  may  be  brought 
in  any  county  bordering  on  such  lake,  river  or  stream,  and  opposite  to  the  place 
where  the  offence  was  committed: 

■"  2.  Agai^ist  a  pubhc  officer  or  person  specially  appointed  to  execute  his 
duties,  for  an  act  done  by  him  in  virtue  of  his  office,  or  against  a  person,  who 
by  his  command  or  in  his  aid,  shall  do  anything  touching  the  duties  of  such 
officer. 

"  Sec.  125.  In  all  other  cases,  the  action  shall  be  tried  in  the  county  in 
which  the  parties  or  any  of  them  shall  reside  at  the  commencement  of  the 
action;  or  if  none  of  the  parties  shall  reside  in  the  state,  the  same  may  be  tried 
in  any  county  which  the  plaintiff  shall  designate  in  his  complaint;  subject, 
however,  to  the  power  of  the  com-t  to  change  the  place  of  trial,  in  the  cases  pro- 
vided by  statute. 

"  Sec.  126.  If  the  county  designated  for  that  purpose  in  the  complaint, 
be  not  the  proper  county,  the  action  may,  notwithstanding,  be  tried  therein, 
imless  the  defendant  shall,  before  the  time  for  answering  expire,  demand  in 
writing  that  the  trial  be  had  in  the  proper  county." 

For  the  present  law  in  New  York,  see  New  York  Code  of  Civil  Procedure, 
sees.  982-991. 

In  England  it  is  provided  by  the  Rules  of  the  Supreme  Com-t,  1SS3,  Order 
XXXVI,  Rule  1,  that  "  There  shall  be  no  local  venue  for  the  trial  of  any  action, 
except  where  otherwise  provided  by  statute,  but  in  every  action  in  every  Divi- 
sion the  place  of  trial  shall  be  fixed  by  the  Court  or  a  judge."  See  Annual 
Practice,  1914,  p.  581;  Odgers,  Pleading  &  Practice,  6th  ed.,  67,  68. — Ed. 


12  VENUE 

convenience,  adjourned  the  cause  to  a  Special  Term  of  the  Supreme 
Court,  to  be  held  at  Brooklyn,  in  the  county  of  Kings.  The  de- 
fendants objected  to  the  adjournment  to  the  county  of  Kings,  but 
their  objection  was  overruled.  The  cause  was  tried  at  the  Kings 
county  Special  Term,  and  an  order  for  final  judgment  was  made  in 
said  county  of  Kings,  though  the  judgment  was  entered  and  the 
costs  adjusted  in  Queens  county. 

From  the  judgment  so  entered,  an  appeal  was  taken  to  the  Gen- 
eral Term,  where  the  judgment  was  affirmed,  and  from  such  judg- 
ment of  affirmance  an  appeal  was  taken  to  this  court. 

Andrews,  J.^  The  legislature,  having  in  view  some  general 
policy  for  the  distribution  of  the  judicial  business  of  the  State,  as 
well  as  the  convenience  of  parties,  has  prescribed  the  place  where 
the  trial  and  other  proceedings  in  actions  in  the  Supreme  Court 
shall  be  had. 

The  place  of  trial  of  actions  is  provided  for  in  title  four  of  part 
second  of  the  Code,  and  it  declared  in  section  123  that  actions  for 
certain  specified  causes  must  be  tried  in  the  county  where  the  cause 
of  action,  or  some  part  thereof,  arose,  subject  to  the  power  of  the 
court  to  change  the  place  of  trial  in  cases  where  (1)  the  county 
designated  for  that  purpose  in  the  complaint  is  not  the  proper 
county,  or  (2)  when  there  is  reason  to  believe  that  an  impartial 
trial  cannot  be  had  therein,  or  (3)  when  the  convenience  of  wit- 
nesses, and  the  ends  of  justice  would  be  promoted  by  the  change. 

The  action  for  the  foreclosure  of  a  mortgage  upon  real  property 
is  among  the  causes  specified  in  this  section.  .  .  . 
^^  This  action  was  triable  in  the  county  of  Queens. 

The  mortgaged  premises,  which  were  the  subject  of  the  action, 
are  situate  in  that  county.  That  was  the  place  named  in  the  com- 
plaint as  the  place  of  trial.  The  cause  was  at  issue  and  noticed  for 
trial  at  a  Special  Term  in  that  county,  and  the  court  had  not 
changed  the  place  of  trial  under  the  126th  section  of  the  Code. 

The  justice  who  held  the  Special  Term,  when  the  cause  was 
reached,  on  his  own  motion,  and,  as  stated  in  the  case,  for  his  own 
convenience,  against  the  objection  of  the  defendants,  adjourned 
the  hearing  to  a  Special  Term  thereafter  to  be  held  in  the  county  of 
Kings,  and  the  cause  was  tried  in  that  county  under  this  order  of 
the  court. 

The  ground  upon  which  the  court  proceeded  in  changing  the 
place  of  trial  is  not  one  of  those  mentioned  in  the  section  we  have 

'  A  purt  of  the  opinion  is  omitted.  —  Ed. 


BIRMINGHAM    IRON    FOUNDRY   V.    HATFIELD  13 

cited,  and  unless  the  authority  is  found  elsewhere,  the  action  of  the 
court  was  irregular  and  unauthorized.  .  .  . 

The  defendants  by  appearing  upon  the  trial  of  the  action  did  not 

waive  their  objection  to  the  adjournment  of  the  trial  to  Kings 

county. 

The  court  could  not,  without  the  consent  of  the  parties,  try  the 
action  in  that  county.     If  no  objection  had  been  made  by  the  de-  ")    ^ ->^ 
fendants,  their  presence  at  the  trial  might  have  been  evidence  of  ;_^  ^ 

such  consent;    but,  having  made  the  objection,  they  were  not     ^*  ?■•••-' 
obliged  to  renew  it.      Nor  were  they  compelled  to  abandon  their 
defense  on  the  trial  in  order  to  preserve  the  rights  secured  to  them 
by  statute. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  the  judges  concurring,  judgment  reversed  and  new  trial 
ordered.^ 

^  As  to  the  power  to  grant  a  change  of  venue,  see  Cochecho  R.  R.  ?;.  Farring- 
ton,  26  N.  H.  428;  Tidd,  Practice,  8th  ed.,  650-653;  40  Cyc.  116;  4  Encyc.  of 
PI.  &Pr.  373.  — Ed. 


CHAPTER  II. 

PROCESS. 

Section  I. 

Form  of  Process. 

{Form  of  Writ  of  Summons  in  England.)  ^ 

In  the  High  Court  of  Justice. 

Division. 

Between  A.B.,  Plaintiff, 

and 
CD.,  Defendant. 

George  the  Fifth,  by  the  grace  of  God,  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  and  of  the  British  Domin- 
ions beyond  the  Seas,  King,  Defender  of  the  Faith. 

To  C.  D.  of in  the  county  of 

We  command  you.  That  within  eight  days  after  the  service  of 
this  writ  on  you,  inclusive  of  the  day  of  such  service,  you  do  cause 
an  appearance  to  be  entered  for  you  in  an  action  at  the  suit  of  A.B. ; 
and  take  notice  that  in  default  of  your  so  doing  the  plaintiff  may 
proceed  therein,  and  judgment  may  be  given  in  your  absence. 
Witness,  Richard  Burdon,  Viscount  Haldane  of  Cloan, 

Lord  High  Chancellor  of  Great  Britain,   the day   of 

in  the  year  of  Our  Lord  One  thousand  nine  hundred  and 


[Memorandum  to  be  subscribed  on  the  writ :] 
N.B.  —  This  writ  is  to  be  served  within  twelve  calendar 
months  from   the   date  thereof,  or,  if   renewed, 
within  six  calendar  months  from  the  date  of  the 
last  renewal,  including  the  day  of  such  date,  and 
not  afterwards. 
The  defendant  may  appear  hereto  by  entering  an  appearance 
either  personally  or  by  solicitor  at  the  Central  Office,  Royal  Courts 
of  Justice,  London. 

^  This  is  the  general  form  of  a  Writ  of  Summons  in  the  High  Court  of 
Justice,  as  provided  for  by  the  Rules  of  the  Supreme  Court,  1S83.  The  form 
of  a  writ  for  issue  from  a  District  Registry,  or  of  a  writ  for  service  out  of  the 

14 


FORM    OF   PROCESS  15 

[Indorsements  to  be  made  on  the  writ  before  issue  thereof :] 

The  plaintiff's  claim  is  for  damages  for  breach  of  contract  to 
accept  and  'pay  for  goods. 

This  writ  was  issued  by  the  said  plaintiff/  who  resides  at 

[Indorsement  to  be  made  on  the  writ  after  service  thereof :] 

This  writ  was  served  by  me  at on  the  defendant 

on the day  of ,  19 

Indorsed  the day  of ,  19 

(Signed) 
(Address) 


IS,  > 


(Form  of  Writ  of  Summons  in  Illinois.) 
State  of  Illinois, 
County  of  Cook, 

The  People  of  the  State  of  Illinois,  to  the  Sheriff  of  said  County, 
Greeting  : 
We  command  you  that  you  summon  C.  D.  if  he  shall  be  fv)und 
in  your  County,  personally  to  be  and  appear  before  the  Circuit 
Court  of  Cook  County,  on  the  first  day  of  the  term  thereof, 
to  be  holden  at  the  Court  House  in  the  City  of  Chicago  in  said 

Cook  County,  on  the  third  Monday  of a.d.,  19 ,  to 

answer  unto  A.  B.  in  a  plea  of  trespass  on  the  case  upon  promises, 

to  the  damage  of  said  plaintiff,  as  it  is  said,  in  the  sum  of 

dollars. 

And  have  you  then  and  there  this  writ 
with  an  endorsement  thereon,  in  what  man- 
ner you  shall  have  executed  the  same. 

Witness,  M.  N.,  Clerk  of  our  said  Court, 
and  the  seal  thereof,  at  Chicago,  in  said 
County,  this day  of a.d.  19 

M.  N.,  Clerk, 
[Return  of  sheriff,  endorsed  on  summons  :] 
Served  this  writ  on  the  within  named  defendant,  C.  D.,  by  reading 
the  same  to  him,  and  at  the  same  time  delivering  a  copy  thereof 
to  him  this day  of ,  19 

S.  T.,  Sheriff. 
Fees: By  V.  W.,  Deputy. 

jurisdiction,  or  of  a  specially  indorsed  writ,  is  slightly  different.     See  Rules  of 
the  Supreme  Court,  1883,  Appendix  A.,  Part  I. 

»  Or,  This  wTit  was  issued  by  E.  F.,  of ,  whose  address  for  service  is 

.solicitor  for  the  said  plaintiff,  who  resides  at ;  or  This  writ 

was  issued  by  G.  H.,  of ,  whose  address  for  service  is agent  for 

of ,  solicitor  for  the  said  plaintiff,  whe  resides  at 


SEAL  OF  THE  CIR- 
CUIT COURT  OF 
COOK   COUNTY. 


16  PROCESS 

{Form  of  Writ  of  Summons  and  Attachment  in  Massachusetts.)  * 

Commonwealth  of  Massachusetts. 
Suffolk,  ss. 

To  the  Sheriffs  of  our  several  Counties  or  their  Deputies, 


SEAL   OF  THE 
SUPERIOR   COURT. 


Greeting. 


We  command  you  to  attach  the  goods  or 
estate  of  C.  D.,  of  Boston,  in  said  County,  defendant,  to  the  value 

of dollars,  and  to  summon  the  said  defendant  (if  he  may 

be  found  in  your  precinct)  to  appear  before  our  Justices  of  our 
Superior  Court  to  be  holden  at  Boston,  within  and  for  our  said 

County  of  Suffolk,  on  the  first  Monday  of next;  then 

and  there  in  our  said  Court  to  answer  unto  A.  B.,  of  Boston,  in 
said  County,  plaintiff,  in  an  action  of  contract,  to  the  damage  of 

the  said  plaintiff  (as  he  says)  the  sum  of dollars,  which 

shall  then  and  there  be  made  to  appear  with  other  due  damages. 
And  have  you  there  this  writ  with  your  doings  therein. 

Witness, ,   Esquire,^  at  Boston,  the day  of 

,  in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


M.  N.,  Clerk. 
[Officer's  return,  endorsed  on  the  writ :] 

Suffolk,  SS. 

Boston, 19 

By  virtue  of  this  writ,  I  this  day  attached  a  chip  as  the  property 
of  the  within  named  defendant,  C.  D.,  and  afterwards  on  the  same 
day,  I  summoned  said  defendant  to  appear  and  answer  at  Court 
as  within  directed,  by  delivering  to  him  in  hand  a  summons  to- 
gether with  an  attested  copy  of  this  writ.     Said  service  was  made 

at 

Fees: V.  W.,  Deputy  Sheriff. 

1  The  form  here  given  is  that  of  a  summons  and  attachment,  which  is  the 
writ  ordinarily  used  in  actions  which  are  not  begun  by  the  trustee  process. 
When  no  actual  attachment  is  desired  by  the  plaintiff,  the  officer  makes  a 
return  like  that  in  the  form  here  given.  It  is  possible,  but  very  unusual  in 
practice,  to  begin  an  action  by  an  original  summons,  similar  in  form  to  the 
summons  and  attachment,  except  that  the  direction  to  attach  the  goods  and 
estate  of  the  defendant  is  omitted.  See  Mass.  R.  L.,  c.  167,  sees.  15-17. 
For  a  form  of  original  summons,  see  Mass.  G.  L.,  p.  162.  —  Ed. 

^  The  Constitution  of  Mass.,  Part  II,  c.  VI,  art.  5,  provides  that  all  writs 
issuing  out  of  the  clerk's  office  in  any  of  the  courts  of  law  "  shall  bear  test  of 


NEEDHAM   V.    THAYER  17 

(Form  of  Summons  in  New  York.)  ^ 

Supreme  Court  of  the  State  of  New  York 
County  of  New  York 
A.B.,  Plaintiff       ) 

against  ^  Summons. 

CD.,  Defendant  ^ 

To  the  above  named  defendant : 

You  are  hereby  summoned  to  answer  the  complaint  in  this 
action  and  to  serve  a  copy  of  your  answer  on  the  plaintiff's  attorney 
within  twenty  days  after  the  service  of  this  summons,  exclusive  of 
the  day  of  service,  and  in  case  of  your  failure  to  appear,  or  answer, 
judgment  will  be  taken  against  you  by  default  for  the  relief  de- 
manded in  the  complaint. 

Dated 

X.  Y.,  Attorney  for  Plaintiff. 
Office  and  Post-Office  address. 
No.  1000  Wall  Street, 
Borough  of  Manhattan, 
The  City  of  New  York. 


Section   II. 

Service  of  Process. 

A.    As  A  Basis  of  Personal  Judgment. 

NEEDHAM   v.   THAYER. 

Supreme  Judicial  Court  of  Massachusetts.     1888. 

[Reported  147  Massachusetts,  536.] 

Contract  on  a  judgment  recovered  by  the  plaintiff,  on  March 
7,  1874,  in  the  Superior  Court.  Writ  dated  May  16,  1887.  The 
answer  alleged,  that  the  plaintiff  ought  not  to  maintain  the  action 
against  the  defendant  "  upon  said  judgment,  because  he  had  no 
notice  of  said  suit  in  which  said  judgment  was  obtained;  that  at 
the  time  of  the  service  of  said  writ  in  said  last-named  action  the 

the  first  justice  of  the  court  to  which  they  shall  be  returnable,  who  is  not  a 
party."  —  Ed. 

*  The  form  of  summons  here  given  is  provided  for  by  the  New  York  Code  of 
Civil  Procedure,  sec.  418,  wherein  it  is  also  provided  that  "  the  summons  is 
deemed  the  mandate  of  the  court."  —  Ed. 


18  PROCESS 

defendant  was  an  inhabitant  and  resident  of  the  State  of  Connecti- 
cut, and  had  no  notice  of  the  commencement  of  said  action,  or  of 
its  pendency  in  court." 

At  the  trial  in  the  Superior  Court,  without  a  jury,  before  Dun- 
bar, J.,  after  evidence  that  the  judgment  remained  unsatisfied,  the 
defendant  offered  evidence  tending  to  show  that  at  the  time  the 
original  action,  resulting  in  the  recovery  of  the  judgment,  was 
commenced,  he  was  not  a  resident  of  this  Commonwealth,  but  was 
a  resident  of  the  State  of  Connecticut ;  that  no  service  of  the  writ 
in  that  action  was  made  as  required  by  law,  and  no  notice  was  given 
to  him  of  such  action;  that  such  action  was  brought  without  his 
knowledge,  and  that  he  had  no  notice  of  the  same  until  after  the 
commencement  of  this  action;  and  that  the  judgment  in  the  origi- 
nal action  was  obtained  against  him  by  default.  The  judge,  upon 
objection  by  the  plaintiff,  excluded  the  evidence,  and  found  for  the 
plaintiff;  and  the  defendant  alleged  exceptions. 

Morton,  C.  J.  The  question  of  the  validity  of  a  judgment 
rendered  by  a  court  of  this  State  against  a  defendant  who  was  not 
a  resident  of  the  State,  and  who  was  not  served  personally  with 
process  within  the  State,  was  considered  in  Eliot  v.  McCormick, 
144  Mass.  10.  In  that  case  this  court,  following  the  decisions  in 
the  Supreme  Court  of  the  United  States,  held  that  such  judgment  •  r-'  j 
<"contravene4Jthe  fourteenth  article  of  the  Amendments  of  the  Con- 
stitution otK  the  United  States,  and  was  invalid,  and  would  be  re- 
versed upon  a  writ  of  error. 

The  case  at  bar  presents  the  question,  whether,  in  a  suit  in  this 
State  upon  such  a  judgment,  the  defendant  may  show  by  plea  and 
proof  that  it  is  invalid.  The  recent  cases  in  the  Supreme  Court  of 
the  United  States  go  upon  the  ground,  that  a  judgment  in  personam 
against  a  person  who  is  not  a  resident  of  the  State,  who  has  nof 
been  personally  served  with  process,  and  who  has  not  appeared,  js  ^^^^j^ 
.  wholly  void,  and  that  no  suit  can  be  maintained  on  it,  either  in  the 
same  or  in  any  other  court.  Pennoyer  v.  Neff,  95  U.  S.  714,  732. 
Freeman  v.  Alderson,  1 19  U.  S.  185.  The  court  has  no  jurisdiction, 
and  its  judgment  has  no  force,  either  in  the  State  in  which  it  was 
rendered,  or  in  any  other  State.  This  being  so,  the  judgment  can- 
not be  enforced  by  a  suit  upon  it,  and  the  non-resident  defendant 
cannot  be  deprived  of  his  right  to  show  by  plea  and  proof,  if  such 
suit  is  brought,  that  the  judgment  is  void,  without  an  abridgment 
of  his  privileges  and  immunities,  to  protect  which  was  the  object 
of  the  fourteenth  article  of  Amendment.  To  compel  him  to  resort 
to  our  courts  by  a  writ  of  error,  in  which  he  must  file  a  bond  if  he 


NEEDHAM   V.    THAYER  19 

would  obtain  a  stay  of  the  execution,  is  to  impose  a  burden  upon 
him,  and  thus  to  abridge  his  privileges  and  immunities.  It  has 
been  held,  in  many  cases,  that  a  domestic  judgment  cannot  be  im- 
peached by  plea  and  proof  in  a  suit  brought  upon  it,  because  the 
proper  remedy  is  a  writ  of  error.  Hendrick  v.  Whittemore,  105 
Mass.  23,  and  cases  cited.  But  while  a  State  may  make  laws 
binding  its  own  citizens,  requiring  them  to  resort  to  a  writ  of  error^ 
it  cannot  so  bind  citizens  of  other  States. 

The  case  of  McCormick  v.  Fiske,  138  Mass.  879,  seems  opposed 
to  our  views.  But  in  that  case  the  question  of  the  effect  of  the 
fourteenth  article  of  Amendment  was  not  raised  or  suggested  to 
the  court,  and  therefore  was  not  considered.  In  the  case  at  bar, 
the  effect  of  that  amendment  is  involved.  The  defendant's  an- 
swer sets  up  that,  at  the  time  when  the  original  suit  was  brought 
against  him,  he  was  a  non-resident,  and  that  no  service  was  made 
upon  him.  We  are  of  the  opinion  that  he  had  the  right  to  impeach 
the  judgment  by  proof  of  these  facts,  and  that  the  ruling  rejecting 
such  evidence  was  erroneous. 

Exceptions  sustained.^ 

J^j_V'*^'^  ^  A  personal  judgment  against  a  non-resident  defendant  served  by  publica- 
tion only  is  held  mvalidjeven  in  the  state  where  it  is  rendered.  Cocke  v. 
Brewer,  68  Miss.  77^,  9  So.  823;  Smith  v.  McCutchen,  38  Mo.  415;  McKinney 
V.  Colhns,  88  N.Y.  216;  Paxton  v.  Daniell,  1  Wash.  19,  23  Pac.  441. 

A  personal  judgment  against  a  non-resident  defendant  personally  served 
outside  the  state  where  the  judgment  is  rendered  is  likewise  held  invahd  even 
in  that  state.  Harkness  v.  Hyde,  98  U.  S.  476,  25  L.  ed.  237;  Denny  v.  Ashley,'" 
12  Col.  165,  20  Pac.  331;  Long  v.  Insurance  Co.,  114  N.  C.  465,  19  S.  E.  347; 
Wallace  v.  United  Electric  Co.,  211  Pa.  473,  60  Atl.  1046;  Scott  v.  Streepy, 
73  Tex.  547,  11  S.  W.  532. 

No  action  will  lie  in  another  state  on  a  personal  judgment  against  a  de- 
fendant not  personally  served  within  the  state  where  the  judgment  is  rendered 
nor  resident  therein.  Buchanan  v.  Rucker,  9  East,  191;  Schibsby  v.  Westen- 
holz,  L.  R.  6  Q.  B.  155;  Pennoyer  v.  Neff,  95  U.  S.  714,  24  L.  ed.  565;  Rand 
V.  Hanson,  154  Mass.  87,  28  N.  E.  6;  McEwan  v.  Zimmer,  38  Mich.  765; 
Whittier  v.  WendeU,  7  N.  H.  257  (semble);  Price  v.  Schaeffer,  161  Pa.  530,  29 
Atl.  279,  25  L.  R.  A.  699.  And  the  mere  fact  that  the  cause  of  action  arose 
within  the  state  where  the  judgment  is  rendered  does  not  give  its  courts  juris- 
diction. Sirdar  Gurdyal  Singh  v.  Rajah  of  Faridkote,  (1894)  A.  C.  670; 
Emanuel  v.  Symon,  (1908)  1  K.  B.  302.  —  Ed. 


'Jjj^ 


iMT' 


( 


J--.        ^U>^t 


20  PROCESS 


SMITH  V.   GIBSON. 
Supreme  Court  of  Alabama.     1887. 

[Reported  83  Alabama,  284.] 

Clopton,  J.  The  action  was  brought  by  appellee  in  the  Cir- 
cuit Court  of  Walker  county,  to  recover  the  amount  due  on  a  prom- 
issory note  made  by  appellant.  The  defendant  filed  a  plea  to  the 
jurisdiction  of  the  court,  on  the  ground  that,  at  the  commencement 
of  the  suit,  and  of  the  service  of  process,  he  was  a  resident  citizen 
of  Maryland.  The  assignments  of  error  only  relate  to  the  ruling  of 
the  court,  sustaining  a  demurrer  to  the  plea.  The  summons  was 
served  on  the  defendant  in  person  by  the  sheriff.  The  plea  does 
not  ^egati verbis  presence  in  the  county  at  the  time  of  service;  and  ^ 
fails  to  aver  that  he  was  induced  by  false  representations,  or  by  any 
artifice,  to  come  within  the  jurisdiction  of  the  court,  for  the  purpose 
of  obtaining  service  of  process  upon  him. 

The  general  rule  is,  that  every  country  has  jurisdiction  over  all 
persons  found  within  its  territorial  limits,  for  the  purposes  of  ac- 
tions in  their  nature  transitory.  It  is  not  a  debatable  question, 
that  such  actions  may  be  maintained  in  any  jurisdiction  in  which 
the  defendant  may  be  found,  and  is  legally  served  with  process. 
However  transiently  the  defendant  may  have  been  in  the  State, 
the  summons  having  been  legally  served  upon  him,  the  jurisdiction 
of  his  person  was  complete,  in  the  absence  of  a  fradulent  induce- 
ment to  come.  —  Peabody  v.  Hamilton,  106  Mass.  217;  76  Amer. 
Dec,  note,  667;  Whar.  Con.  Laws.  §§  738,  739.  The  statute  pro- 
viding that  suits  against  a  resident  free-holder  or  house-holder 
must  be  brought  in  the  county  of  his  residence,  has  no  application. 

Affirmed} 

»  Darrah  v.  Watson,  36  la.  116;  Alley  v.  Caspar!,  80  Me.  234,  14  Atl.  12; 
Thompson  v.  Cowell,  148  Mass.  552,  20  N.  E.  170,  accord.  So  although  the 
plaintiff  is  also  a  non-resident.  Lee  v.  Baird,  139  Ala.  526,  36  So.  720;  Pea- 
body  V.  Hamilton,  106  Mass.  217.     See  page  2,  note  1,  ante. 

Methods  of  Effecting  Personal  Service 

In  the  absence  of  any  statutory  provision  as  to  the  method  of  effecting 
personal  service,  it  has  been  held  that  the  summons  must  be  read  to  the 
defendant.  Law  v.  Grommes,  158  III.  492,  41  N.  E.  1080.  (For  the  present 
rule  in  Illinois  see  Kurd's  R.  S.  1913,  ch.  110,  sec.  2.) 

The  method  of  effecting  personal  service  is  regulated  by  statutes  in  the 
several  states.     The  usual  method  is  by  delivery  of  a  copy  of  the  summons, 


At'-'lLA^^'^t^  m^tthe;^^^  yy' tufts    f  /^-"''^     21 

^  '     MATTHEWS   v.   TUFTS.  \f/^^\^- 

Court  of  Appeals  of  New  York.     1882. 

[Reported  87  New  York,  568.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  first  judicial  department,  made  October  21,  1881,  which  re- 
versed an  order  of  Special  Term,  setting  aside  the  service  of  the 
summons  herein  upon  defendant  Tufts,  and  dismissing  the  action 
as  to  him. 

The  motion  was  founded  upon  the  affidavit  of  said  defendant, 
which  stated  in  substance  that  he  was  a  resident  of  Boston,  and 
came  to  the  city  of  New  York  for  the  purpose  of  attending  at  the 
first  meeting  of  creditors  of  Edward  IVIatthews,  a  bankrupt,  the 
husband  of  the  plaintiff,  held  there  before  a  register  in  bankruptcy; 
that  defendant  "  attended  said  meeting  solely  as  a  creditor  and 
witness,  to  prove  certain  debts  and  claims  against  the  estate  of 
said  bankrupt,  to  participate  in  the  choice  of  assignee,  and  for  no 
other  purpose."  "  While  still  attending  in  said  office  as  such  wit- 
ness," and  "  about  fifteen  minutes  after  the  meeting  had  ad- 
journed," the  summons  in  this  action  was  served  on  the  defendant. 

The  bankrupt  made  an  opposing  affidavit,  in  general  terms, 
claiming  that  the  defendant  was,  ''  in  fact,  no  creditor  of  this 
deponent  in  said  bankruptcy  matter  or  otherwise,  and  was  not  at 
the  date  of  said  meeting."  It  was  admitted  that  the  defendant 
did  prove  eight  claims  at  the  meeting,  amounting  to  !$386,568.53. 

Rapallo,  J.     In  Van  Lieuw  v.  Johnson,  decided  March,  1871, 
I  and  referred  to  in  Person  v.  Grier,  66  N.  Y.  124,  a  majority  of  this 
I  court  were  of  opinion  that  a  summons  could  not  be  served  upon  a  . 
defendant,  a  non-resident  of  the  State,  while  attending  a  court  in  I  J 

this  State  as  a  party.     This  immunity  does  not  depend  upon  stat- 
utory provisions,  but  is  deemed  necessary  for  the  due  administra- 

with  or  without  an  exhibition  of  the  original;   or  by  reading  the  summons  or 
explaining  its  contents. 

As  to  how  far  the  defendant  may  prevent  service  by  refusing  to  hear  the 
summons  read,  or  by  refusing  to  receive  a  copy  of  it,  or  otherwise,  see  Heath  v. 
White,  2  Dowl.  &  L.  40;  Boggs  v.  Inter- American,  etc.,  Co.,  105  Md.  371,  -^ 
66  Atl.  259;  Slaght  v.  Robbins,  13  N.  J.  L.  340;  Van  Rensselaer  v.  Petrie,  . 
2  How.  Pr.  (N.  Y.),  94;  Davison  t^.  Baker,  24  How.  Pr.  (N.  Y.),  39;  Correll  v. 
Granget,  12  Misc.  (N.  Y.),  209,  34  N.  Y.  Supp.  25;  Borden  v.  Borden,  63  Wis. 
374,  23  N.  W.  573.  Compare  Krotter  &  Co.  v.  Norton,  84  Neb.  137,  120 
N.  W.  923.  —  Ed. 


yVtu-^-'Vci-'^    <^^'' 


I     -x^^^ 


X     ^C'UVV      ^fuv-Tl    ,LVUA.-vX 
d     vl  1  rwv^V-'O^  . 


22  PROCESS 

tion  of  justice.  It  is  not  confined  to  witnesses,  but  extends  to 
parties  as  well,  and  is  abundantly  sustained  by  authority.  Cole 
V.  Hawkins,  Andr.  275;  s.  c,  2  Str.  1094;  Arding  v.  Flower,  8  T. 
R.  534;  Miles  v.  McCullough,  1  Binn.  77;  Hayes  v.  Shields,  2 
Yeates,  222;  Parker  v.  Hotchkiss,  1  Wall.  Jr.  269;  Juneau  Bank  v. 
McSpedan,  5  Biss.  64;  Halsey  v.  Stewart,  1  South.  [N.  J.]  366; 
Miller  v.  Dungan,  8  Vr.  [N.  J.]  182;  In  re  Healey,  53  Vt.  694.  This 
exemption  from  service  of  civil  process  has  been  frequently  ac- 
corded to  creditors  attending  proceedings  in  bankruptcy  {Ex  parte 
List;  2  Ves.  &  B.  373;  Ex  parte  King,  7  Ves.  Jr.  312),  and  to  a 
creditor  who  attended  before  the  commissioners  to  propose  himself 
as  assignee  and  watch  the  proceedings.  Selby  v.  Hills,  8  Bing.  166. 
Commissioners  in  bankruptcy  are  a  court  of  justice  sufficient  for 
the  purpose  of  having  their  witnesses  protected  by  the  Court  of 
Chancery,  at  least,  if  not  by  themselves.  They  sit  in  the  nature 
of  a  court  in  the  administration  of  justice.  Arding  v.  Flower,  8 
T.  R.  534.  In  proceedings  in  bankruptcy  the  due  administration 
of  justice  requires  that  all  the  creditors  should  be  free  to  attend, 
without  interference  by  service  of  process  of  anj^  kind.  The 
moving  affidavit  showed  that  the  defendant  came  from  Boston 
where  he  resides,  to  New  York,  and  attended  the  meeting  of  credi- 
tors at  the  office  of  the  register  in  bankruptcy,  solely  as  a  creditor 
and  witness,  to  prove  certain  debts  and  claims  against  the  estate 
of  the  bankrupt,  and  to  participate  in  the  choice  of  an  assignee,  and 
for  no  other  purpose ;  that  while  so  attending,  and  while  the  meet- 
ing was  being  held,  or  immediately  thereafter,  before  he  had  time 
to  complete  his  business  as  such  creditor  and  witness  at  such  meet- 
ing and  leave  the  office,  the  summons  was  served  upon  him.  It 
appears  that  the  defendant  did  at  said  meeting  present  proofs  of 
claims  amounting  to  upwards  of  $386,000  in  his  own  l^ehalf,  and 
also  presented  proof  of  claims  of  other  creditors  as  their  attorney 
in  fact,  and  voted  for  the  assignee  both  individually  and  as  attorney 
for  the  other  creditors  whom  he  represented,  and  that  the  proofs 
of  debt  had  been  prepared  and  verified  in  Massachusetts.  The 
plaintiff  claims  that  the  defendant  was  not  attending  as  a  witness, 
but  only  as  a  creditor,  and  also,  on  the  hearing  of  the  motion,  read 
affidavits  denying  the  validity  of  his  claims  as  a  creditor.  These 
claims  could  not  be  tried  on  the  motion  to  set  aside  the  service, 
and,  conceding  that  the  defendant  was  in  attendance  only  as  a 
party,  and  as  attorney  of  other  parties,  we  think  that  he  was  privi- 
leged from  service  of  process  or  summons  while  so  attending. 


MATTHEWS    V.    TUFTS  23 

The  order  of  the  General  Term  should  be  reversed  and  that  of 
the  Special  Term  affirmed,  with  costs. 

All  concur.  Ordered  accordingly.^ 

^  For  conflicting  decisions  as  to  the  privilege  of  non-resident  parties  from 
service  of  civil  process,  see  Hale  v.  Wharton,  73  Fed.  739;  Bolz  v.  Crone,  64 
Kan.  570,  67  Pac.  1108;  Parker  v.  Marco,  136  N.  Y.  585,  32  N.  E.  989,  20 
L.  R.  A.  45,  32  Am.  St.  Rep.  770;  Andrews  v.  Lembeck,  46  Oh.  St.  38,  18  N.  E. 
483,  15  Am.  St.  Rep.  547,  which  allow  the  privilege;  Bishop  v.  Vose,  27  Conn.  1 ; 
Baisley  v.  Baisley,  113  Mo.  544,  21  S.  W.  29,  35  Am.  St.  Rep.  726  (semblc), 
which  deny  the  privilege. 

As  to  privilege  of  non-resident  witnesses  from  service  of  civil  process, 
see  Chittenden  v.  Carter,  82  Conn.  585,  74  Atl.  884,  18  Ann.  Cas.  125;  Greer 
V.  Yomig,  120  111.  184,  11  N.  E.  167;  MitcheU  v.  Huron  Circuit  Judge,  53 
Mich.  541,  9  N.  W.  176;  MuDiearn  v.  Press  Pubhshing  Co.,  53  N.  J.  L.  153, 
21  Atl.  186,  11  L.  R.  A.  101;  In  re  Healey,  53  Vt.  694. 

As  to  privilege  of  parties  and  witnesses  from  service  of  civil  process  while 
actually  in  coiu-t,  see  Cameron  v.  Roberts,  87  Wis.  291,  58  N.  W.  376. 

As  to  privilege  of  non-resident  defendants  in  criminal  suits  from  service  of 
civil  process,  see  Dwelle  v.  Allen,  193  Fed.  546;  Murray  v.  Wilcox,  122  la.  188, 
97  N.  W.  1087,  64  L.  R.  A.  534,  101  Am.  St.  Rep.  263;  Netograph  Mfg.  Co.  v. 
Scrugham,  197  N.  Y.  377,  90  N.  E.  962,  27  L.  R.  A.  (n.s.),  333,  134  Am.  St.  Rep. 
886. 

On  the  question  whether  non-resident  attorneys  are  privileged  from  service 
of  civil  process,  see  Robbins  ?'.  Lincoln,  27  Fed.  342;  Read  v.  Neff,  207  Fed.  890; 
Hoffman  v.  Bay  Circuit  Judge,  113  Mich.  109,  71  N.  W.  480,  38  L.  R.  A.  663, 
67  Am.  St.  Rep.  458;  Greenleaf  v.  Bank,  133  N.  C.  292,  45  S.  E.  638,  63  L.  R.  A. 
499,  98  Am.  St.  Rep.  709;  Whitman  v.  Sheets,  20  Oh.  Cir.  Ct.  1.  Compare 
National  Press  Intelligence  Co.  v.  Brooke,  18  Misc.  (N.  Y.),  373,  41  N.  Y.  Supp. 
658. 

On  the  question  of  privilege  of  a  non-resident  party  to  an  action  from  service 
of  process  in  an  action  for  a  WTong  in  connection  with  the  original  action  or  for  a 
cause  of  action  arising  after  he  has  come  into  the  state,  see  Nichols  v.  Horton, 
14  Fed.  327;  Iron  Dyke  Copper  Min.  Co.  v.  Iron  Dyke  R.  Co.,  132  Fed.  208; 
MuUen  v.  Sanborn,  79  Md.  364,  29  Atl.  522,  25  L.  R.  A.  721,  47  Am.  St.  Rep. 
421. 

As  to  privilege  from  arrest  of  parties,  witnesses,  and  attorneys,  see  Thomp- 
son's Case,  122  Mass.  428;  EUis  v.  Degarmo,  17  R.  I.  715,  24  Atl.  579;  Tidd's 
Practice,  8th  ed.,  198-200;  3  Blackstone,  Com.  *289. 

As  to  waiver  by  failure  to  object  to  a  violation  of  privilege,  see  Morrow  v. 
U.  H.  Dudley  &  Co.,  144  Fed.  441,  where  on  the  facts  it  was  held  that  thc- 
privilege  was  not  waived. 

As  to  privilege  of  legislators,  see  Howard  v.  Trust  Co.,  12  App.  D.  C.  222; 
Berlet  v.  Weary,  67  Neb.  75,  93  N.  W.  238,  60  L.  R.  A.  609,  108  Am.  St. 
Rep.  616;  Bartlett  v.  Blair,  68  N.  H.  232,  38  Atl.  1004;  Worth  v.  Norton,  66 
S.  C.  56,  33  S.  E.  792,  76  Am.  St.  Rep.  524. 

As  to  the  effect  of  fraud  in  inducing  the  defendant  to  come  into  the  state 
and  there  serving  him  with  process,  see  Jaster  v.  Currie,  198  U.  S.  144,  49  L.  ed. 
988,  25  S.  Ct.  614  (where  it  was  held,  reversing  s.c,  69  Neb.  4,  94  N.  W.  995, 
that  the  facts  did  not  amount  to  fraud);  Frawley,  Bundy  &  Wilco.x  v.  Peon. 


(IM-^-^^^  I    CABANNE  V.   GRAF. 

Supreme  Court  of  Minnesota.     1902. 
[Reported  87  Minnesota,  510.] 

Start,  C.  J.^  Action  in  the  municipal  court  of  the  city  of  St. 
Paul  to  recover  damages  for  a  breach  by  the  defendant  of  a  con- 
tract whereby  he  agreed  to  employ  the  plaintiff  for  a  stated  period. 
Judgment  was  entered  by  default  against  the  defendant  for  the 
sum  of  $496.92  costs  and  damages.  / 

The  proof  of  the  service  of  the  summons  was  to  the  effect  that  it 
was  served  by  the  plaintiff's  attorney  upon  the  defendant  by  hand- 
ing to  and  leaving  with  his  agent  and  representative  (naming  him) 
a  true  copy  thereof,  and  that  the  defendant  had  been  engaged  in 
business  in  the  city  of  St.  Paul  for  six  months  then  last  past,  and 
was  absent  from  this  state.  The  defendant  appeared  specially, 
and  moved  the  court  to  set  aside  the  j  udgment  as  void.  The  plain- 
tiff then  made  a  motion  to  amend  his  proof  of  service  of  the  sum- 
mons so  as  to  show  that  the  defendant  was  a  nonresident  of  the 
state  of  Minnesota,  and  not  therein,  but  had  been  for  more  than  a 
year  then  last  past  actively  engaged  in  carrying  on  business  at  the 
city  of  St.  Paul,  which  was  in  charge  of  his  agent  and  representa- 
tive, upon  whom  service  was  made.  The  trial  court  allowed  the 
proof  of  service  to  be  so  amended,  and  denied  the  defendant's 
motion  to  set  aside  the  judgment  as  void.  The  defendant  appealed 
from  the  order  denying  his  motion. 

It  evidently  was  the  intention  of  the  plaintiff  to  make  service  of 
the  summons  in  this  case  pursuant  to  the  provisions  of  Laws  1901, 
c.  278,  which  are  to  the  effect  that,  whenever  a  cause  of  action  exists 
in  favor  of  a  resident  of  this  state  against  any  nonresident  individ- 
ual, association,  or  copartnership  engaged  in  business  in  this  state, 
by  reason  of  such  business,  the  summons  may  be  served  upon  the 
manager,  superintendent,  foreman,  agent,  or  representative  of 
such  individual,  association,  or  copartnership  while  in  charge  of 

Casualty  Co.,  124  Fed.  259  (where  an  agent  of  the  defendant  corporation  was 
inveigled  into  the  state);  Dunlap  k.  Co.  v.  Cody,  31  la.  260;  Steiger  v.  Bonn, 
59  How.  Pr.  (N.Y.),  49(i,  4  Fed.  17;  Taylor,  Petitioner,  29  R.  I.  129,  69  Atl.  553 
(where  it  was  held  that  the  service  was  good  because  the  plaintiff  was  not 
privy  to  the  fraud). 

See  on  the  general  question  of  privilege,  Alderson,  Judicial  Writs  and  Proc- 
ess, Chap.  XXV;  32  Cyc.  490;  16  Encyc.  of  PI.  and  Pr.  968;  19  id.  606.  —Ed. 

1  The  statement  of  facts  is  omitted.  — Ed. 


^  CAB  ANNE    V.    GRAF  25 

such  business,  with  the  same  effect  as  if  it  were  personally  served. 
Section  2  of  the  act  provides  that  the  summons  in  such  cases,  in  the 
absence  from  this  state  of  the  defendant,  of  which  the  sheriff's 
return  shall  be  prima  facie  evidence,  may  be  made  by  delivering  a 
copy  to  the  agent  or  representative  of  such  nom-esident  defendant 
while  he  is  in  actual  charge  of  the  business  out  of  which  the  cause 
of  action  arose. 

Waiving  the  objections  of  the  defendant  that  the  record  does 
not  show  a  compliance  with  the  terms  of  the  statute,  we  have  for 
our  decision  the  question  whether  the  statute,  in  so  far  as  it  author- 
izes the  service  of  summons  on  a  nonresident  and  absent  defendant 
with  the  same  effect  as  if  personally  served  on  him  within  the  state, 
is  constitutional.  Whether  the  statute  is  valid  as  applied  to  asso- 
ciations or  copartnerships,  which  are  qiuisi  legal  entities,  to  the 
extent  of  binding  their  property,  but  not  that  of  the  individuals  of 
which  they  are  composed,  we  do  not  consider  or  decide,  for  this  is 
not  such  a  case,  but  one  against  an  individual.  It  is  a  case  where 
the  defendant  was  a  nonresident  and  absent  natural  person,  having 
property  within  this  state,  which  the  court  did  not  seize,  and  upon 
whom  the  summons  was  never  served,  except  by  delivering  a  copy 
thereof  to  his  agent,  and  yet  a  judgment  in  personam  was  rendered 
against  him,  good  everywhere  if  the  statute  is  valid. 
^AfJjJZ'  The  state  has^enary|jurisdiction  over  all  property,  real  or  per- 
J"*^^  '— ' '  "  sonal,  within  its  limits,  and  may  seize  and  subject  it  to  the  payment 
of  the  debts  of  the  owners  thereof,  whether  citizens  of  the  state  or 
not,  upon  such  reasonable  notice  as  the  legislature  may  prescribe. 
But  the  power  of  the  state  personally  to  affect,  by  the  judgments 
of  its  courts,  citizens  of  another  state,  without  personal  service  of 
process  upon  them  A\athin  the  state,  is  quite  another  matter. 
Prior  to  the  decision  in  the  case  of  Pennoyer  v.  Neff,  95  U,  S.  714, 
it  was  the  law  of  this  state,  and  in  some  other  jurisdictions,  that, 
if  a  nonresident  defendant  had  property  in  this  state,  its  courts 
had  jurisdiction,  without  seizing  it,  to  proceed  by  publication  of 
the  summons,  and  render  a  judgment  in  personam,  valid  within 
the  state  to  the  extent  of  any  property  of  the  defendant  therein. 
Stone  V.  Myers,  9  Alinn.  287  (303);  Cleland  v.  Tavernier,  11  Minn. 
126  (194).  Such,  however,  is  not  now  the  law,  for  a  statute  au- 
thorizing such  a  proceeding  would  not  be  due  process  of  law. 
Kenney  v.  Goergen,  36  Minn.  190,  31  N.  W.  210;  Lydiard  v.  Chute, 
45  Minn.  277,  47  N.  W.  967;  Plummer  v.  Hatton,  51  Minn.  181,  53 
N.  W.  460. 


Eennover^  y.  Neff.  is  the  leading  authority  in  support  of  the  now 
well-settled  proposition  that,  except  as  to  proceedings  affecting  the 
personal  status  of  the  plaintiff,  or  in  rem,  or  as  to  actions  to  enforce 
liens,  or  to  quiet  title,  or  to  recover  possession  of  property,  or  for 
the  partition  thereof,  or  to  set  aside  fraudulent  transfers  thereof, 
or  to  obtain  judgment  enforceable  against  property  seized  by 
attachment  or  other  process,  no  state  can  authorize  its  courts  to 
compel  a  citizen  of  another  state  remaining  therein  to  come  before 
them  and  submit  to  their  decision  a  mere  claim  upon  him  for  a 
money  demand,  no  matter  what  the  prescribed  mode  of  service  of 
process  against  him  may  be.  An  attempt  to  do  so  is  not  due  proc- 
ess of  law.  2  Freeman,  Judgm.  §§  564-567;  Hart  v.  Sansom,  110 
U.  S.  151,  3  Sup.  Ct.  586;  Arndt  v.  Griggs,  134  U.  S.  316,  10  Sup. 
Ct.  557;  De  La  Montanya  v.  De  La  Montanya,  112  Cal.  101,  44 
Pac.  345,  53  Am.  St.  Rep.  165,  and  notes  181. 

Now,  unless  the  fact  that  a  nonresident  natural  person  does 
business  in  this  state  which  is  in  charge  of  an  agent  creates  an  ex- 
ception to  this  rule,  the  act  here  under  consideration  is  unconstitu- 
tional as  to  such  a  party.  Clearly,  such  a  case  is  not  an  exception 
to  the  rule,  for  the  mere  fact  that  a  natural  person  carries  on  busi- 
ness in  this  state  by  an  agent  cannot  affect  the  question  of  the  juris- 
diction of  our  courts  over  him  personally.  The  court  may  seize 
his  property  within  the  state  by  its  process,  and,  upon  such  reason- 
able constructive  notice  to  him  as  the  legislature  may  direct,  apply 
the  property  to  the  payment  of  his  debts ;  but  the  legislature  can- 
not declare  that  to  be  personal  service  on  a  citizen  of  another  state, 
not  actually  found  within  the  state,  which  is  not  so  in  fact.  Such 
nonresident  person,  unlike  a  corporation,  carries  on  business  in  this 
state  not  by  virtue  of  its  consent,  but  by  virtue  of  the  federal  con- 
stitution which  guarantees  to  the  citizens  of  each  state  all  privileges 
and  immunities  of  citizens  of  the  several  states;  hence  it  cannot  be 
implied  from  the  fact  that  he  does  business  within  the  state  that 
he  consents  to  submit  himself  to  the  jurisdiction  of  its  courts  in 
personal  actions  upon  service  of  process  on  his  agent.  He  submits 
his  property  which  he  sends  into  the  state  to  the  jurisdiction  of  its 
courts,  but  not  his  person.  Caldwell  v.  Armour,  1  Pennewill,  545, 
43  Atl.  517;  Brooks  v.  Dun  (C.  C),  51  Fed.  138.  In  each  of  the 
cases  cited  it  was  held  that  a  statute  which  authorized  service  of 
summons,  in  a  personal  action,  on  a  nonresident  natural  person  to 
be  made  on  his  agent  in  charge  of  his  business  within  the  state,  was 
unconstitutional,  because  it  was  in  violation  of  section  2,  article  4, 
of  the  federal  constitution,  and  of  section  1  of  the  fourteenth 


t\/x^^ 


MONTGOMERY,    JONES    &    CO.    V.    LIEBENTHAL    &    CO.  27 

amendment.  See  also  Ralya  Market  Co.  v.  Armour  &  Co.  (C.  C), 
102  Fed.  530. 

We  are  of  the  opinion,  and  so  hold,  that  so  much  of  Laws  1901, 
c.  278,  as  provides  for  the  service  of  the  summons  in  a  personal 
action  against  a  natural  person  who  is  a  citizen  of  another  state 
carrying  on  business  in  this  state  without  a  seizure  of  his  property 
by  the  process  of  the  court,  is  unconstitutional.  It  follows  that 
the  defendant  in  this  case  was  entitled  to  have  the  judgment 
against  him  set  aside  as  void. 

It  is  therefore  ordered  that  the  order  appealed  from  be  reversed, 
and  the  case  remanded,  with  directions  to  the  municipal  court  to 
grant  the  defendant's  motion  to  set  aside  the  judgment.^ 

^MONTGOMERY,  JONES  &  COMPANY  v.  LIEBENTHAL 

&   COMPANY. 

Court  of  Appeal.     1898. 

[Reported  (1S9S)  1  Queen's  Bench,  487.] 

A,  L.  Smith,  L.  J.-  In  my  opinion  this  appeal  fails.  The  de- 
fendants applied  at  chambers  to  set  aside  the  service  of  the  writ  of 
summons  upon  them.  The  answer  of  the  plaintiffs  to  that  appli- 
cation is  that  the  defendants  have  agreed  that  the  writ  should  be 
served  in  the  way  in  which  it  has  been  served,  and  that  such  service 
should  be  equivalent  to  personal  service  on  them.  The  facts  are 
these.  The  plaintiffs  are  corn  merchants  carrying  on  business  in 
Liverpool,  and  the  defendants  are  corn  merchants  resident  and 
carrying  on  business  in  Scotland.  The  defendants  agreed  to  sell 
a  cargo  of  wheat  to  the  plaintiffs,  and  the  contract  contains  a 
stipulation  that  all  disputes  arising  out  of  the  contract  should  be 
referred  to  two  arbitrators,  sul)ject  to  an  appeal  to  the  Committee 
of  Appeal  of  the  London  Corn  Trade  Association.  The  contract 
also  contains  a  clause  that  any  party  to  it  residing  or  carrying  on 
business  either  in  Scotland  or  Ireland  shall  for  the  purpose  of  such 
proceedings  be  considered  as  ordinarily  resident  or  carrying  on 

^  Aikmann  v.  Sanderson  &  Porter,  122  La.  265,  47  So.  600,  accord.  Guen- 
ther  V.  American  Steel  Hoop  Co.,  116  Ky.  580,  76  S.  W.  419,  contra.  Compare 
Alaska  Commercial  Co.  v.  Debney,  144  Fed.  1;  Lo\vi-ie  v.  Castle,  198  Mass.  82, 
83  N.  E.  1118;  Green  v.  Snyder,  114  Tenn.  100,  84  S.  W.  808.  See  19  Encyc. 
of  PI.  and  Pr.  649.  —  Ed. 

2  The  concmring  opinions  of  Chitty  and  Collins,  L.  JJ.,  as  well  as  the 
statement  of  facts,  are  omitted.  —  Ed. 


28  PROCESS 

business  at  the  office  of  the  London  ('orn  Trade  Association,  and 
the  contract  goes  on  to  provide  that  "  service  of  proceedings  upon' 
a  party  residing  or  carrying  on  business  in  Scotland  or  Ireland,  by 
leaving  the  same  at  the  office  of  the  London  Corn  Trade  Associa- 
tion, together  with  the  posting  of  a  copy  of  such  proceedings  to  the 
address  in  Scotland  or  Ireland,  shall  be  deemed  good  service,"  i.  e. 
good  personal  service.  In  the  first  place,  it  seems  to  me  to  be  clear 
that  the  expression  "  service  of  proceedings  "  includes  the  service 
of  a  writ.  That  being  so,  the  service  contemplated  by  the  con- 
tract is  service  at  the  office  of  the  London  Corn  Trade  Association. 
That  does  not  mean,  as  has  been  suggested,  that  the  writ  may  be 
served  by  merely  pushing  it  under  the  door  of  the  office  or  doing 
anything  of  that  sort.  It  means  that  the  writ  must  be  left  with 
some  person  at  the  office,  as  was  done  in  this  case.  The  service 
was  therefore  effected  at  the  office  in  accordance  with  the  contract. 
After  the  service  had  been  so  effected,  a  letter  containing  a  copy  of 
the  writ  was,  in  accordance  with  the  contract,  posted  to  the  de- 
fendants in  Scotland  to  inform  them  that  the  Avrit  had  been  served. 
The  question  arises  whether  that  agreement  as  to  service  is  or  is 
not  a  valid  agreement.  The  writ,  as  I  have  said,  has  been  served 
in  the  manner  in  which  the  parties  agreed  that  it  should  be  served. 
The  defendants,  nevertheless,  say  that  there  has  been  no  effective 
personal  service  upon  them,  because  the  agreement  as  to  service  is 
invalid.  To  my  mind  that  point  is  not  tenable,;.  I  can  see  nothing 
in  the  rules  to  prevent  the  parties  from  agreeing  to  such  a  course 
of  proceedings,  and  I  can  find  no  case  in  the  books  which  shews  that 
such  an  agreement  as  that  made  in  this  case  is  invalid.  The  case 
of  Tharsis  Sulphur  Co.  v.  Societe  Industrielle  des  Metaux,  58  L.  J. 
(Q.  B.)  435,  60  L.  T.  924,  is  an  authority  in  support  of  the  propo- 
sition that  the  parties  can,  as  regards  the  mode  of  service,  contract 
themselves  out  of  the  rules,  and  may  appoint  a  person  as  agent  to 
accept  service,  so  long  as  they  do  not  ask  the  Court  to  do  some- 
thing which  it  is  prohibited  from  doing  under  the  rules.  In  the 
present  case  no  application  was  made  to  the  Court  for  leave  to 
serve  the  writ  in  the  manner  agreed  u})on,  nor  was  any  application 
necessary.  The  case  of  British  Wagon  Co.  v.  Gray,  [1896]  1  Q.  B. 
35,  was  relied  upon  by  defendants.  That  decision  went  upon 
Order  xi,  r.  1  (e),  which  deals  with  service  out  of  the  jurisdiction. 
That  rule  allows  service  of  a  writ'out  of  the  jurisdiction  where  the 
action  is  foimdcd  on  any  breach  within  the  jurisdiction  of  any 
contract  wherever  made,  which  according  to  the  terms  thereof 
ought  to  be  performed  within  the  jurisdiction;  but  the  last  clause 


MONTGOMERY,    JONES    &    CO.    V.    LIEBENTHAL    &    CO. 


29 


expressly  prohibits  the  rule  from  being  applicable  in  the  case  of  a 
defendant  who  is  domiciled  or  ordinarily  resident  in  Scotland  or 
Ireland.  The  plaintiffs  in  British  Wagon  Co.  v.  Gray,  [1896]  1 
Q.  B.  35,  applied,  and  had  to  apply,  for  leave  to  serve  the  writ  on 
the  defendant,  who  was  resident  in  Scotland,  on  the  ground  that  he 
had  agreed  to  be  served  in  Scotland;  but  Mathew,  J.,  at  chambers 
refused  leave  on  the  ground  that  the  rule  expressly  forbade  such 
an  order  being  made  by  the  Court,  and  that  the  existence  of  the 
agreement  could  make  no  difference;  and  this  Court  affirmed  his 
decision  upon  that  ground.  The  pith  of  that  case  is  well  summed 
up  by  Lopes,  L.  J.,  where  he  says  that  "  assuming  the  contract  had 
the  effect  which  it  is  contended  that  it  had,  I  think  it  is  clear  that 
the  parties  had  no  power  to  contract  that  the  Court  should  have  a 
jurisdiction  which  is  forbidden  by  the  rules."  Lord  Esher,  M.R., 
said  that  "  the  Court  can  take  no  notice  of  such  an  agreement,  and 
can  only  order  service  of  the  writ  in  the  manner  allowed  by  the 
rules,  and  not  in  any  other  manner  upon  which  the  parties  may 
agree."  With  that  I  entirely  agree;  but  that  is  not  this  case. 
There  is  no  application  to  the  Court  in  this  case  to  do  something 
which  it  is  forbidden  by  the  rules  to  do.  This  case  comes  within 
the  decision  in  Tharsis  Sulphur  Co.  v.  Societe  Industrielle  des 
Metaux,  58  L.  J.  (Q.  B.)  435,  60  L.  T.  924,  which  I  think  is  a  right 
decision.     The  appeal  must,  therefore,  be  dismissed. 

Appeal  dismissed.^ 

^  Jurisdiction  may  be  conferred  by  implied  as  well  as  by  express  consent. 
See  Copin  v.  Adamson,  L.  R.  9  Exch.  345JFeyerick  v.  Hubbard,  71  L.  J.  K.  B. 
509;  Emanuel  v.  Symon  (1908),  1  K.  B.  302. 

A  statute  is  constitutional  which  provides  that  the  plaintiff  in  an  action 
who  is  not  an  inhabitant  of,  or  cannot  be  found  within  the  state,  shall  be  held 
to  answer  to  a  cross  action  by  the  defendant,  if  the  demands  in  the  two  cases 
are  such  that  the  judgments  or  executions  can  be  set  off  against  each  other,  and 
that  the  writ  in  such  cross  action  may  be  served  on  the  person  who  appears  as 
the  attorney  of  the  plaintiff  in  the  original  action.  Aldrich  v.  Blatchford,  175 
Mass.  369,  56  N.  E.  700;  Arkwright  Mills  v.  Aultman,  etc.,  Co.,  128  Fed. 
195.  —  Ed. 


^'^^t.-u/^^^:^?^      "^     f 


\^  ^^^ 


30  PROCESS 

^ALLURED  V.   VOLLER. 

Supreme  Court  of  Michigan.     1895. 

[Reported  107  Michigan,  476.] 

On  the  third  of  November,  1892,  the  plaintiff  commenced  suit  in 
the  Osceola  Circuit  Court  against  one  Elbert  D.  Pierson.  There 
was  no  return  of  service  upon  Pierson,  but  the  following  accept- 
ance of  service  was  filed,  and  the  genuineness  of  the  signature 
proved  by  affidavit : 

"  Flint,  Mich.,  11-8-1892. 
"  I,  Elbert  D.  Pierson,  defendant  in  the  within  attached  sum- 
mons, do  hereby  accept  service  of  the  same  this  11th  day  of  Novem- 
ber, 1892,  and  hereby  waive  formal  service  by  an  officer,  and  allow 
the  plaintiff  herein  named  to  proceed  with  the  case,  the  same  as 
though  service  had  been  made  as  commanded  in  said  summons. 
"  Signed  in  the  presence  of 
"  Lizzie  Pierson. 

(Signed)  "  Elbert  D.  Pierson." 


fi- 


P 


The  plaintiff  obtained  judgment  against  Pierson  and  a  levy  was 
made  on  a  certain  parcel  of  land  and  a  sale  was  subsequently  made 
thereunder  to  the  plaintiff.     The  defendant  in  the  present  action  j  . 
'^subsequently  "procured  a  quitclaim}  deed  of  the  same  land  from/  ;. 
Pierson  and  the  plaintiff  brought  this  action  of  ejectment  therefor. 
The  plaintiff  recovered  judgment  and  the  defendant  appeals.^ 

Montgomery,  J.  .  .  .  The  authorities  are  not  harmonious  on 
the  question  of  the  effect  of  a  mere  acceptance  of  a  service  of  a  writ 
beyond  the  jurisdiction  of  the  court.  Perhaps  by  the  weight  of 
authority  such  acceptance  operates  as  evidence  of  a  service  at  the 
place  where  such  acceptance  is  indorsed,  and  has  no  greater  effect 
than  proof  of  an  actual  service  made  at  that  place.  2  Enc.  PI.  & 
Prac.  638,  and  cases  cited.  But  see  Vermont  Farm  Machine  Co. 
V.  Marble,  20  Fed.  117;  Cheney  v.  Harding,  21  Neb.  65;  Johnson 
V.  Monell,  13  Iowa,  300.^    But  in  the  present  case  the  indorsement 

^  The  statement  of  facts  is  taken  from  the  opinion  and  is  somewhat  abridged. 
A  part  of  the  opinion  is  omitted.  —  Ed. 

2  For  the  effect  of  acknowledgment  of  service  within  the  jurisdiction,  see 
Franklin  v.  Conrad-Stanford  Co.,  137  Fed.  737;  Purcell  v.  Bennett,  68  N.  J.  L. 
519,  53  Atl.  235;  Stoddard  Mfg.  Co.  v.  Mattice,  10  S.  D.  2.53,  72  N.  W.  891. 
As  to  acknowledgment  made  outside  the  jurisdiction,  see  Richardson  v.  Smith, 
11  Allen  (Mass.),  134;  Jones  v.  Merrill,  113  Mich.  433,  71  N.  W.  838;  Litch- 
field V.  Burwell,  5  How.  Pr.  (N.Y.),  341;  White  v.  White,  66  W.  Va.  79,  66 
S.  E.  2,  135  Am.  St.  Hep.  1013.  Comi)are  Godwin  v.  Monds,  106  N.  C.  448, 
10  S.  E.  1044.     See  32  Cyc.  4.50;   19  Encyc.  of  PI.  and  Pr.  697.  —  Ed. 


CONTINENTAL    NATIONAL    BANK    V.    THURBER    AND    OTHERS     31 

on  the  summons  was  something  more  than  an  acceptance  of  service. 
It  contained  a  stipulation  that  phiintiff  might  "  proceed  with  the 
case  the  same  as  though  service  had  been  made  as  commanded  in 
said  summons";  that  is,  in  the  county.  If  an  appearance  may 
operate  to  waive  service,  as  is  universally  held,  it  is  difficult  to 
understand  why  an  agreement  to  waive  service,  duly  signed,  and 
evidently  intended  to  be  filed  in  the  case,  may  not  and  should  not 
have  a  like  effect.  It  has  been  held  that  the  admission  of  service 
is,  if  accompanied  by  an  agreement  to  enter  an  appearance,  suffi- 
cient to  confer  jurisdiction,  even  though  such  agreement  be  made 
beyond  the  territorial  jurisdiction  of  the  court.  Keeler  v.  Keeler, 
24  Wis.  525;  Shaw  v.  Bank,  49  Iowa,  179.  See,  also,  cases  cited 
above.  .  .  . 

Judgment  affirmed,  with  costs. ^ 

Long,  Grant,  and  Hooker,  JJ.,  concurred.     McGrath,  C.  J., 

did  not  sit. 


I     CONTINENTAL  NATIONAL  BANK  v.   THURBER 

and  Others. 

Supreme  Court  of  New  York,  General  Term.     1893. 

[Reported  74  Hun,  632.]  ^ 

Follett,  J.^  Tjiis^ctinn  wfi«  brQughtjULrecoverof  the  appellant 
the  amount  due  on  a  bill  of  exchange,  dated  January  18,  1893, 
drawn  and  payable  at  the  city  of  New  York,  and  indorsed  by  the 
defendant  at  that  city.  When  the  bill  was  drawn  the  defendant 
was,  and  has  ever  since  remained,  a  resident  citizen  of  this  State. 
The  summons  in  this  action  was  issued  August  10,  1893,  and  on 
the  twenty-third  of  the  same  month  an  order  for  the  substituted 
service  of  it  on  the  defendant  was  granted,  pursuant  to  section  435 
of  the  Code  of  Civil  Procedure.* 

1  As  to  the  effect  of  a  voluntary  appearance,  see  Chapter  III,  infra.  As  tc 
judgments  by  confession,  see  Chapter  X,  infra.  —  Ed. 

^  The  order  of  the  General  Term  was  affirmed  without  opinion  in  the  Court 
of  Appeals,  143  N.  Y.  648.  —  Ed. 

^  A  part  of  the  opinion  relating  to  a  motion  to  vacate  the  order  for  sub- 
stituted service,  and  the  opinion  de)''vered  at  Special  Term,  are  omitted.  —  Ed. 

*  The  sections  of  the  New  York  Code  of  Civil  Procedure  referred  to  in  the 
principal  case  are  as  follows : 

"  Sec.  435.  Where  a  summons  is  issued  in  c.ny  court  of  record,  an  order 
for  the  service  thereof  upon  a  defendant  residing  within  the  State  may  be 


32  PROCESS 

August  23,  1893,  the  summons  and  order  were  served  on  the 
defendant  by  leaving  copies  of  them  at  his  residence  with  a  person 
of  proper  age,  pursuant  to  said  order  and  section  436  of  the  Code. 
The  defendant  failed  to  appear  in  the  action,  and  September  16, 
1893,  judgment  was  entered  against  him,  which  he  moved  to  vacate 
on  the  following  grounds : 

''1.  That  the  court  had  not,  at  the  date  the  said  order  for  sub- 
stituted service  was  made,  nor  at  the  date  said  judgment  was  ren- 
dered, jurisdiction  over  the  person  of  said  Horace  K.  Thurber. 

"  2.  That  said  judgment,  being  a  personal  judgment,  is  void,  as 
there  has  been  no  personal  service  of  the  summons  herein  upon  said 
Horace  K.  Thurber. 

"  3.  That  section  435  of  the  New  York  Code  of  Civil  Procedure, 
under  which  said  order  for  substituted  service  was  made,  is  uncon- 
stitutional, being  contrary  to  the  provisions  of  article  V  and  article 
XIV  of  the  amendments  to  the  Constitution  of  the  United  States. 

"4.  That  said  judgment  was  so  rendered  against  said  Horace 
K.  Thurber  without  due  process  of  law." 

The  motion  was  denied  and  said  defendant  appeals  from  the 
order.  The  appellant's  sole  point,  which  he  has  divided  into  four, 
is  that  the  court  did  not  acquire  jurisdiction  to  render  a  personal 
judgment  against  him,  not  because  all  of  the.steps  rectuired  by  the 
Code  were  not  duly  taken,  but  because  the  legislation  establishing 
the  procedure  for  the  substituted  service  is  violative  of  the  provi- 
sion of  the  Constitutions  of  the  United  States  and  of  this  State, 
that  a  person  shall  not  be  deprived  of  his  property  without  due  proc- 

made  by  the  court  or  a  judge  thereof,  or  the  county  judge  of  the  county  where 
the  action  is  triable,  upon  satisfactory  proof,  by  the  affidavit  of  a  person,  not 
a  party  to  the  action,  or  by  the  return  of  the  sheriff"  of  the  county  where  the 
defendant  resides,  that  proper  and  dihgent  effort  has  been  made  to  serve  the 
summons  upon  the  defendant,  and  that  the  place  of  his  sojourn  cannot  be 
ascertained,  or,  if  he  is  within  the  State,  that  he  avoids  service,  so  that  personal 
service  cannot  be  made. 

"Sec.  436.  The  order  must  direct,  that  the  service  of  the  summons  be  made; 
by  leaving  a  copy  thereof,  and  of  the  order,  at  the  residence  of  the  defendant, 
with  a  person  of  proper  age,  if  upon  reasonable  application,  admittance  can 
be  obtained,  and  such  a  person  found  who  will  receive  it;  or,  if  admittance 
cannot  be  so  obtained,  nor  such  a  person  found,  by  affixing  the  same  to  the 
outer  or  other  door  of  the  defendant's  residence,  and  by  depositing  another 
copy  thereof,  properly  inclosed  in  a  post-paid  wrapper,  addressed  to  him,  at 
his  place  of  residence,  in  the  post-office  at  the  place  where  he  resides." 

In  1896  (L.  1896,  c.  562)  sec.  436  was  amended  by  adding  at  the  end  "  or 
upon  proof  being  made  by  affidavits  that  no  such  residence  can  be  found, 
service  of  the  summons  may  be  made  in  such  manner  as  the  court  may  direct." 
—  Ed. 


ft.^1^      -Va  I  i  ^^t*^ 


CONTINENTAL  NATIONAL  BANK  V.    THURBER  AND  OTHERS  33 

ess  of  law.  ^  A  citizen  of  a  State  is  bound  by  its  laws,  both  sub- 
stantive and  those  regulating  judicial  procedure.  Acquiring 
jurisdiction  of  resident  defendants  by  constructive  service  of 
process  is  a  proceeding  according  to  the  course  of  the  common 
law,  and  is  due  process  of  law.  This  kind  of  service  was  not 
unkno\\Ti  to  the  common  law,  but  was  an  authorized  mode  by 
which  the  English  courts  of  law,  and  of  equity,  from  the  earliest 
times  acquired  jurisdiction  of  resident  defendants.  3  Black. 
Com.  383,  445. 

Anciently,  if  a  citizen  refused  to  appear  and  answer  to  the  process 
of  the  courts  of  England  he  was  outlawed  and  his  property  taken 
to  satisfy  the  just  demands  of  his  creditors.  2  Reeves'  Hist.  Eng. 
Law  [Finlason's  ed.],  308;  6  Bracton  [Twiss'  ed.],  477,  et  seq.;  2  Sel- 
lon's  Pr.  [1st  Am.  ed.],  277. 

In  this  State  outlawTies  in  personal  actions  were  regulated  by 
chapter  9  of  the  Laws  of  1787,  and  the  practice  in  such  cases  is 
stated  in  chapter  10  of  Wyche's  Practice,  the  first  work  published 
on  the  procedure  of  the  courts  of  this  State. 

Every  sovereignty  has  power  to  regulate  the  procedure  of  its 
courts  and  prescribe  the  rights  which  plaintiffs  may  acquire  and  the 
liabilities  which  may  be  imposed  on  resident  defendants  by  judg- 
ments recovered  in  its  tribunals.  Hunt  v.  Hunt,  72  N.  Y.  217; 
Rigney  v.  Rigney,  127  id.  408;  Mackay  v.  Gordon,  34  N.  J.  Law, 
286;  Piggott,  For.  Judg.  130;  Schibsby  v.  Westenholz,  L.  R.  [6  Q. 
B.]  155. 

In  the  case  last  cited  Lord  Blackburn  said:  "  Now,  on  this  we 
think  some  things  are  quite  clear  on  principle.  If  the  defendants 
had  been,  at  the  time  of  the  judgment,  subjects  of  the  country 
whose  judgment  is  sought  to  be  enforced  against  them,  we  think 
that  its  laws  would  have  bound  them.  Again,  if  the  defendants^ 
had  been,  at  thej,ime  when  the  suit  w'as^commencedfPfesidentrTn 
the^ountry,  so  as  to  have  the""benefit  of TEslsws  protecting  thein^ 
or,  as  it  is  sometimes  expressed,  owing  temporary  allegiance  to  that 
country,  we  think  that  its  laws  would  have  bound  them."  This 
was  said  in  an  action  brought  to  recover  on  a  judgment  recovered 
against  the  defendants  in  France.  The  defendants  were  not  domi- 
ciled in  France  nor  subject  to  the  jurisdiction  of  the  French  court. 
They  had  no  notice  nor  knowledge  of  the  proceedings,  and  did  not 
appear  in  the  action.  AlLcountries  having  j udicial  systems  pro- 
vide modes  by  which  resident  citizens  can  be  bound  by  the  judg- 
Dients  of  its  courts  without  personal  service  of  the  process,  and 


34  PROCESS 

abstracts  of  the  statutes  of  many  States  and  countries  will  be  found 
in  Piggott  on  Judgments.  .  .  . 

The  orders  should  be  affirmed,  with  ten  dollars  costs  on  each 
appeal.^ 

Van  Brunt,  P.  J.,  and  Parker,  J.,  concurred. 


I 


CLEARWATER    MERCANTILE    COMPANY   v. 
ROBERTS  et  at. 

Supreme  Court  of  Florida.     1906. 
[Reported  51  Florida,  176.] 

Cockrell,  J.2  This  writ  of  error  is  prosecuted  to  review  the 
denial  of  a  motion  to  vacate  a  personal  judgment  against  a  domes- 
tic corporation  consequent  upon  a  default  for  want  of  appearance, 
the  service  having  been  made  pursuant  to  section  1024  of  the  Re- 
vised Statutes.  It  is  admitted  that  the  provisions  of  the  section 
were  complied  with  strictly  but  it  is  insisted  that  the  said  section 
is  unconstitutional,  in  that  it  authorizes  a  personal  judgment  with- 
out personal  service  and  therefore  does  not  constitute  due  process 
of  law. 

The  statute  originally  enacted  in  1853,  Chapter  539,  sec.  1,  and 
brought  forward  in  the  Revised  Statutes  of  1892,  reads: 


c 


>l 


^  A  personal  judgment  against  a  resident  may  be  valid  although  he  was  not 
ersonally  served  with  process  within  the  state.  Nelson  v.  C.  B.  &  Q.  R.  R. 
Co.,  225  111.  197,  80  N.  E.  109,  8  L.  R.  A.  (n.  s.),  1186,  116  Am.  St.  Rep.  133 
(service  by  pubhcation);  Sturgis  v.  Fay,  16  Ind.  429,  79  Am.  Dec.  440  (service 
by  leaving  copy  at  last  place  of  residence).  But  see  De  la  Montanya  v.  De  la 
Montanya,  112  Cal.  101,  44  Pac.  345,  32  L.  R.  A.  82,  53  Am.  St.  Rep.  165 
(service  by  pubhcation);  Raher  v.  Raher,  150  la.  511,  129  N.  W.  494,  35 
L.  R.  A.  (n.  s.),  292  (service  outside  the  state). 

The  courts  of  other  jurisdictions  will  recognize  the  vaUdity  of  such  a  judg- 
ment. Schibsby  v.  Wcstenholz,  L.  R.  6  Q.  B.  155,  161  {semhle);  Ouseley  v. 
Lehigh  Valley  Trust  Co.,  84  Fed.  602;  Bryant  v.  Shute's  Ex'or,  147  Ky.  268, 
144  S.  W.  28  (service  by  leaving  copy  at  last  place  of  resid(>nce) ;  Harryman 
V.  Roberts,  52  Md.  64  (service  by  leaving  copy  at  last  place  of  residence); 
Henderson  v.  Staniford,  105  Mass.  504,  7  Am.  Rep.  551  (service  outside  the 
state).  But  compare  Grubel  v.  Nassauer,  210  N.  Y.  1113,  103  N.  E.  1113 
(service  by  pubhcation,  on  one  who  was  a  subject  of,  but  who  was  not  domi- 
ciled in  the  country  in  which  the  judgment  was  rendered).  And  see  Chicago 
Title  &  Trust  Co.  v.  Smith,  185  Mass.  363,  70  N.  E.  426. 

The  provisions  of  th(!  statutes  allowing  service  on  residents  other  tlian  per- 
sonal service,  must  be  strictly  complied  with.  Park  Land,  etc.,  Co.  v.  Lane, 
106  Va.  304,  55  S.  E.  690.  —  Ed. 

*  The  statement  of  facts  is  omitted.  —  Ed. 


CLEAKWATICR    MEKCANTILE    CO.    V.    ROBERTS 


35 


L 


"  1024.  Service  upon  domestic  corporation  in  the  absence  of 
officers  or  agents.  —  When  process  against  any  corporation  of  this 
State  cannot  be  served  owing  to  the  failure  of  said  corporation  to 
elect  officers  or  appoint  agents,  their  absence  from  the  State  for  the 
period  of  six  months  before  the  issuing  of  said  writ,  or  because  they 
are  unknown,  it  shall  be  the  duty  of  the  officer  to  return  said  writ, 
with  the  causes  of  his  inability  to  serve  the  same,  and  upon  the 
return  of  said  writ  as  aforesaid,  the  judge  of  the  court  from  which 
the  same  shall  have  issued  shall  make  an  order  at  any  time,  setting 
forth  the  names  of  the  parties,  the  nature  of  the  action,  suit  or 
other  proceeding,  the  court  in  which  the  same  has  been  instituted, 
and  requiring  the  said  corporation  to  appear  and  defend  the  said 
action,  suit  or  other  proceeding,  and  the  publication  of  said  order 
once  a  week  for  the  space  of  two  months  in  some  newspaper  pub- 
lished in  the  county  in  which  said  action,  suit  or  other  proceeding 
shall  be  instituted,  shall  be  a  full  and  sufficient  notification  to  the 
said  corporation  of  the  institution  of  said  action,  suit  or  other  pro- 
ceeding. However  no  judgment  by  default  or  decree  pro  confesso 
shall  be  taken  ot  rendered  against  said  corporation  until  due  proof 
shall  have  been  made  of  the  publication  of  said  order,  as  herein- 
^Tore  provided." 

The  transcript  before  us  is  scant  but  we  feel  safe  in  holding  that 
the  plaintiff  in  error,  now  attacking  this  statute,  was  created  by  the 
authority  of  the  State  subsequent  to  1853,  and  received  its  charter 
subject  to  all  valid  general  laws  applicable  to  domestic  corporations. 

It  may  be  remarked  incidentally  that  no  contention  is  made  that 
notice  of  the  institution  of  the  action  was  not  actually  received  nor 
that  the  venue  was  improperly  laid  in  a  county  other  than  the  one 
in  which  under  its  charter  the  principal  office  of  the  corporation  '- 
was  located. 

Assuming  then  these  conditions  was  it  competent  in  the  legis- 
lature to  provide  as  to  a  domestic  corporation,  when  it  fails  to  put 
forth  officers  or  agents  upon  whom  service  may  be  made,  that  by 
reason  of  such  failure  it  shall  be  brought  into  court  by  publication, 
with  proper  precautions  as  to  the  ascertainment  of  the  essential 
facts  by  the  court  in  advance  of  any  judgment?  We  answer  in 
the  affirmative. 

We  are  dealing  not  with  natural  persons,  who  create  the  govern-  f 
ments,  but  with  the  fictitious  entities,  called  corporations,  which  /I 
are  created  by  the  government,  deriving  therefrom  their  very  exist- 
ence, with  such  limitations  as  the  creating  power  may  impose, 
except  only  such  limitations  as  may  be  expressly  or  by  clear  impli- 
cations forbidden  by  its  organic  law  or  by  the  federal  authority. 


P 


36  PROCESS 

No  provision  of  the  State  Constitution  is  pointed  out  to  us  that 
inhibits  such  Hmitations  nor  do  we  think  that  the  due  process 
clause  of  the  federal  constitution  is  thereby  violated.  The  great 
case  of  Pennoyer  v.  Neff,  95  U.  S.  715,  expressly  disclaims  an  in- 
tention to  apply  the  principles  there  enunciated  to  the  conditions 
before  us,  and  while  we  entertain  a  high  respect  for  the  justice  pro- 
nouncing the  opinion  in  the  case  of  Bernhardt  v.  Brown,  118  N.  C. 
700,  24  S.  E.  Rep.  527,  and  may  agree  to  the  result  therein  reached, 
yet  much  of  the  reasoning  is  inapplicable  to  the  case  before  us  and 
the  principle  controlling  us  —  that  is  the  power  of  the  State  over 
its  o-wTi  creatures,  is  not  discussed  in  the  cited  opinion.  See  note 
on  this  case  in  50  L,  R,  A.  p.  586. 

fTo  say  in  the  instant  case  that  no  property  of  the  corporation 
may  be  found  within  the  State  upon  which  an  execution  may 
attach,  means  only  that  the  judgment  may  be  futile  not  that  it  is 
void,  and  the  statute  confers  upon  the  creditor  the  privilege  of 
accepting  that  chance  as  to  a  domestic  corporation  which  can  hold 
property  only  by  the  will  of  the  State. 

Strictly  speaking  there  can  be  no  personal  service  upon  a  corpora- 
tion, but  only  such  constructive  or  substituted  service  as  the  law 
may  provide.  It  is  not  unusual  to  provide  as  to  certain  kinds  of 
non-resident  corporations,  that  they  may  come  into  a  State  only 
on  condition  that  service  of  process  upon  some  State  officer  shall 
bind  them  personally;  and  we  do  not  recall  any  decision  holding 
that  such  service  does  not  constitute  due  process  of  law.  Generally 
service  is  made  upon  the  principal  officer  of  a  corporation  who  may 
be  found;  this  is  constructive  service  strictly  speaking,  yet  upon 
such  service  personal  judgments  are  daily  rendered.  j/"'The  funda-^ 
\  mental  object  of  all  laws  relating  to  service  of  process  is  to  give  that 
\     notice  which  will  in  the  nature  of  things  most  likely  bring  the 

. .^^1    attention  of  the  corporation  to  commencement  of  the  proceedings 

gainst  it  and  when  legislation  carries  out  this  clear  design  it  should 
not  be  stricken  down  by  the  courts.    ^  ^  —^ 

-s  uj  A  case  directly  in  point  is  Town  of  Hinckle}^  v.  Kettle  River  R.  R. 

j/  Co.,  70  Minn.  105,  72  N.  W.  Rep.  835.      See,  also.  Continental 

\*'  National  Bank  of  Boston  v.  Thurber,  74  Hun.  632,  affirmed  in  143 

N.  Y.  648.  The  judgment  is  affirmed.^ 

Shackleford,  C.  J.,  and  Whitfield,  J.,  concur. 
Taylor,  Hocker  and  Parkhill,  JJ.,  concur  in  the  opinion. 

1  Nelson  v.  C.  B.  &  Q.  R.  R.,  22.5  111.  197,   80  N.  E.  109,  8  L.  R.  A.  (n.  s.), 
1186,  116  Am.  St.  Rop.  133,  accord. 
y-  So,  too,  a  statute  is  constitutional,  which  provides  for  service  outside  thq 


r\^- 


>   ^    JCry^rt^  T?'    (M-^JU  -<^  "Ifut  ^-CTL^rvJot  (U\/Ja 


I 


BRUNING   V.    BROTHERHOOD    ACCIDENT    COMPANY  37 

BRUNING   V.   BROTHERHOOD   ACCIDENT   COMPANY. 
Supreme  Judicial  Court  of  Massachusetts.     1906. 

[Reported  191  Massachusetts,  115.] 

Contract  on  a  judgment  obtained  in  the  State  of  Indiana. 
Writ  dated  August  26,  1903. 

In  the  Superior  Court  the  case  was  tried  before  Wait,  J.,  who 
at  the  close  of  the  evidence  ordered  a  verdict  for  the  plaintiff  for 
the  amount  of  the  Indiana  judgment  wnth  interest,  and  reported 
the  case  for  determination  by  this  court.-  If  the  verdict  was 
ordered  properly,  judgment  was  to  be  entered  thereon  for  the 
plaintiff;  if  the  direction  was  wTong,  such  verdict  or  judgment  was 
to  be  entered  as  justice  required. 

Knowlton,  C.  J.^    This  is  an  action  upon  a  judgment  recovered 
by  the  plaintiff  against  the  defendant  in  the  State  of  Indiana.  The  \         /^ 
only  question  argued  before  us  is  whether  the  judgment  is  void  for    \    ^^^'^  < 
want  of  jurisdiction  in  the  court  that  rendered  it,  because  there ^      J^i 
was  no  legal  service  upon  the  defendant.     The  service  was  made 
upon  the  auditor  of  the  State  of  Indiana. 

The  defendant  is  a  fraternal  insurance  company  organized  under 
the  laws  of  Massachusetts,  confining  its  membership  to  members 
of  the  Independent  Order  of  Odd  Fellows,  and  having  its  principal 
office  in  Boston.  The  action  in  Indiana  was  upon  a  policy  of  in- 
surance, and  the  e\'idence  was  uncontradicted  that,  at  the  time 
when  the  policy  was  issued,  the  defendant  v/as  doing  business  in 
Indiana  under  a  license  from  that  State.  Before  the  original 
action  was  brought  the  license  had  expired,  and  had  not  been  re- 
newed. The  plaintiff  put  in  evidence  §  4914t  of  the  statutes  of 
Indiana,  under  the  heading,  "  Mutual  Life  and  Accident  Com- 

state  on  a  domestic  corporation.     Straub  v.  Lyman  Land  &  Investment  Co., 
(S.  D.,  1913)  141  N.  W.  »79. 
^  Other  methods  of  service  on  domestic  corporations  may  properly  be  pro- 
/  vided  for  by  statute.     Hinckley  v.  Kettle  River  R.  R.  Co.,  70  Minn.  105,  72 
/   N.  W.  835. 

'''"  The  method  must  be  such  as  is  reasonably  calculated  to  give  the  corporation 
notice  and  an  opportunity  to  defend.  Pinney  v.  Providence  Loan  &  Inv.  Co., 
106  Wis.  396,  82  N.  W.  308,  50  L.  R.  A.  577. 

In  the  absence  of-statutory  provisions,  jurisdiction  over  a  domestic  corpora- 
tion is  obtained  by  service  of  process  on  its  head  officer.     See  Kansas  City,  etc., 
^      R.  R.  Co.  V.  Daughtry,  138  U.  S.  298,  305,  34  L.  ed.  963,  11  S.  Ct.  306;  State 
'     V.  Western  N.  C.  R.  R.  Co.,  89  N.  C.  584;  1  Tidd's  Practice,  8th  ed.,  119.— Ed. 
'  A  part  of  the  opinion  is  omitted.  —  Ed. 


38  PROCESS 

panies,"  which  is  as  follows:  "  All  processes  in  any  action  or  pro- 
ceeding against  any  foreign  corporation,  association  or  society, 
doing  business  in  this  state  under  the  provisions  of  this  act,  may 
be  served  upon  the  auditor  of  this  state,  and  any  lawful  process 
against  it  which  is  served  on  the  auditor  of  state,  shall  be  of  the 
same  legal  force  and  validity  as  if  served  on  the  corporation,  asso- 
ciation or  society,  and  this  provision  shall  continue  in  force  so  long 
as  any  liability  remains  outstanding  against  the  corporation,  asso- 
ciation or  society  in  this  state,  service  upon  such  auditor  of  state 
shall  be  deemed  sufficient  service  upon  the  principal."  Inasmuch 
as  the  defendant  saw  fit  to  do  business  in  Indiana  under  a  license 
from  the  State,  it  was  bound  by  all  reasonable  statutes  relating  to 
service  for  the  purpose  of  giving  jurisdiction  to  local  courts.  Reyer 
V.  Odd  Fellows'  Fraternal  Accident  Assoc,  157  Mass.  367.  Lafay- 
ette Ins.  Co.  V.  French,  18  How.  404.  St.  Clair  v.  Cox,  106  U.  S. 
350.  Gillespie  v.  Commercial  Ins.  Co.,  12  Gray,  201.  There  is 
nothing  to  show  that  this  statute  is  unreasonable,  and  it  is  there- 
fore binding  on  the  defendant.  ... 

Judgment  on  the  verdict} 

'  See  Ex  parte  Schollenberger,  96  U.  S.  369,  24  L.  ed.  853;  Penn.  L.  Mut 
Fire  Ins.  Co.  v.  Meyer,  197  U.  S.  407,  49  L.  ed.  810,  25  S.  Ct.  483  ;  Old  Wayne 
Life  Ass'n  v.  McDonough,  204  U.  S.  8,  51  L.  ed.  345,  27  S.  Ct.  236;  Commercial 
Mut.  Ace.  Co.  V.  Davis,  213  U.  S.  245,  53  L.  ed.  782,  29  S.  Ct.  445;  Fii-emen's 
Ins.  Co.  V.  Thompson,  155  111.  204,  40  N.  E.  488;  Rothrock  v.  Dwelling-House 
Ins.  Co.,  161  Mass.  423,  37  N.  E.  206,  23  L.  R.  A.  863,  42  Am.  St.  Rep.  418; 
Beale,  Foreign  Corporations,  Chaps.  VII,  XL 

As  to  the  jurisdiction  of  the  courts  of  a  state  over  foreign  corporations  doing 
business  in  the  state,  in  the  absence  of  statutes  similar  to  that  in  the  principal 
case,  see  Wilson  Packing  Co.  v.  Hunter,  Fed.  Cas.  No.  17,852;  Middlebrooks 
V.  Springfield  Fire  Ins.  Co.,  14  Conn.  301;  Desper  i>.  Continental  Water  Meter 
Co.,  137  Mass.  252.  Compare  Compagnie  Generale  Transatlantique  v.  Law, 
(1899)  A.  C.  431;  St.  Clair  v.  Cox,  106  U.  S.  350,  27  L.  ed.  222,  1  S.  Ct.  354'. 

As  to  the  effect  of  the  corporation's  ceasing  to  do  business  in  the  state,  see 
Mutual  Reserve  Fund  Life  Ass'n  v.  Phelps,  190  U.  S.  147,  47  L.  ed  987,  23 
S.  Ct.  707;  McCord  Lumber  Co.  v.  Doyle,  97  Fed.  22;  Guthrie  v.  Connecticut 
Indemnity  Ass'n,  101  Tenn.  643,  49  S.  W.  829. 

On  the  question  of  what  constitutes  doing  business  in  a  state,  see  Beale, 
Foreign  Corporations,  Chapter  VIII. 

If  an  agent  of  a  fonngn  corporation  is  fraudulently  inveigled  within  the 
jurisdiction  for  the  purpose  of  serving  him  with  process,  the  service  will  be  set 
aside.     Frawley,  Bundy  &  Wilcox  v.  Penn.  Casualty  Co.,  124  P'ed.  259.  —  Ed. 


^ 


KENDALL    V.    AMERICAN   AUTOMATIC    LOOM    CO. 

KENDALL  v.   AMERICAN  AUTOMATIC   LOOM 
COMPANY. 

SuPEEME  Court  of  the  United  States.     1905. 
[Reported  198  United  States,  477.] 


This  suit  was  brought  in  the  Circuit  Court  of  the  United  States 
for  the  Southern  District  of  New  York  by  the  complainant,  a  citi- 
zen of  New  York,  against  the  defendant,  a  corporation  organized 
and  existing  under  the  laws  of  West  Virginia.  [By  the  charter  of 
the  defendant  corporation,  the  City  of  New  York  was  designated 
as  its  princi})al  office  and  place  of  business.  /  The  bill  of  complaint 
and  a  writ  of  subpoena  were  served  in  the' City  of  New  York  upon 
the  treasurer  of  the  defendant  corporation.  The  corporation  had 
never  engaged  in  business  in  the  State  of  New  York  or  elsewhere 
and  had  no  assets  in  the  State  of  New  York,  and  no  office  or  place 
of  business  there,  and  those  of  its  officers  who  resided  there  were 
not  there  officially,  or  as  representing  any  business  or  interest  of 
the  corporation.  Some  years  before  this  suit  was  instituted, 
several  meetings  of  the  board  of  directors  had  been  held  in  the  City 
of  New  York.  The  Circuit  Court  granted  a  motion  of  the  defend- 
ant to  set  aside  the  service.     The  complainant  appealed.^ 

Peckham,  J.  .  .  .  Regarding  the  case  as  properly  here,  the 
question  is  whether  the  service  made  upon  the  treasurer  of  the 
appellee  corporation  was  a  valid  service  upon  the  corporation 
itself.      We  think  it  was  not.     It  is  perfectly  apparent  that  the  , 

corporation  was,  at  the  time  of  the  service  on  the  treasurer,  doing       c/ 
no  business  whatever  within  the  State  of  New  York,  and  that  it  had      ,  ^-/tc^ 
never  done  any  business  there  since  it  was  incorporated  in  the  State 
of  West  Virginia.     While  we  have  lately  held  that,  in  the  case  of     m  ua  ' 
a  foreign  corporation,  the  service  upon  a  resident  director  of  the         . 
State  where  the  service  was  made  was  a  good  service  where  that     /^fir^ 
corporation  was  doing  business  within  that  State,  Pennsylvania         ' 
Lumbermen's  &c.  Co.  v.  Meyer,  197  U.  S.  407,  yet  such  service 
is  insufficient  for  a  court  to  acquire  juriscHction  over  the  corpo- 
ration where  the  company  was  not  doing  any  business  in  the  State, 
and  was  situated  like  this  company  at  the  time  of  the  service  upon 
the  treasurer.      Conley  v.  Mathieson  Alkali  Works,  190  U.  S.  406. 

The  order  of  the  Circuit  Court  was  right,  and  is      Affirmed.^ 

^  The  statement  of  facts  is  abridged  and  a  part  of  the  opinion  is  omitted.  — 
Kd. 

2  St.  Clair  v.  Cox,  106  U.  S.  350,  27  L.  ed.  222,  1  S.  Ct.  354;    Goldey  v. 


J^J 


( t 


40  PROCESS 

SADLER  V.   BOSTON   &    BOLIVIA    RUBBER    COMPANY. 

Supreme  Court  of  New  York,  Appellate  Division.     1910. 

[Reported  140  New  York  Appellate  Division,  367.]^ 

Scott,  J.  Defendant  appeals  from  an  order  of  the  Special  Term 
denying  a  motion  to  set  aside  and  declare  null  and  void  the  service 
of  a  summons  upon  the  defendant,  appellant. 

One  of  the  plaintiffs  is  a  resident  of  the  State  of  New  York.  The 
defendant  is  a  foreign  corporation,  organized  under  the  laws  of  the 
State  of  Maine;  has  never  been  authorized  to  do  business  in  this 
State,  and  has  never  done  business  here,  or  maintained  an  office  or 
agent  here  for  the  transaction  of  business,  and  has  not  now,  nor 
had  when  the  summons  was  served,  any  property  within  this  State. 
The  summons  was  attempted  to  be  served  upon  defendant  by 
delivery  to  its  treasurer,  a  resident  of  Massachusetts,  while  he  was 
in  transit  through  this  State  on  his  way  from  England  to  his  home. 
Was  this  service  valid  and  did  it  bring  the  defendant  within  the 
jurisdiction  of  the  courts  of  this  State  ?  This  question  is  one  upon 
which  the  decision  of  the  Federal  courts  and  the  courts  of  this  State 
have  been  in  irreconcilable  conflict  for  many  years.  Tested  by  the 
rule  laid  down  in  this  State  in  Pope  v.  Terre  Haute  Car  Mfg.  Co., 
87  N.  Y.  137,  and  never  explicitly^overruled  or  rescinded,  the 
service  was  good,  at^Least-ift-so-faras  to  confer  jurisdiction  of  the 
i;^:ru--4ef«ndant  upon  the  courts  of  this  State.  Tested  by  the  rule  re- 
peatedly laid  down  by  the  Supreme  Court  of  the  United  States, 
the  service  was  bad,  and  conferred  no  jurisdiction  over  the  defend- 
ant upon  any  court.  Vide  cases  cited  by  Mr.  Justice  Clarke  in 
Grant  v.  Cananea  Consolidated  Copper  Co.,  117  App.  Div.  576. 
Of  course,  we  are  bound  to  follow  the  rule  of  our  own  Court  of 

Morning  News,  156  U.  S.  518,  39  L.  ed.  517,  15  S.  Ct.  559;  Caledonian  Coal 
Co.  V.  Baker,  196  U.  S.  432,  49  L.  ed.  540,  25  S.  Ct.  375;  NeweU  v.  Great  W. 
Ry.  Co.,  19  Mich.  336;  Moulin  v.  Insurance  Co.,  24  N.  J.  L.  222;  Aldrich  v. 
Anchor  Coal  Co.,  24  Ore.  32,  32  Pac.  756,  accord. 

On  the  question  whether  the  courts  of  a  state  can  obtain  jurisdiction  over  a 
foreign  corporation  which  has  never  been  engaged  in  business  in  the  state,  by 
service  of  process  on  an  agent  who  is  in  the  state  for  the  purpose  of  investigat- 
ing or  adjusting  the  claim  upon  which  the  suit  is  based,  see  Louden  Ma- 
chinery Co.  V.  Anier.  Mall.  Iron  Co.,  127  Fed.  1008;  Premo  Specialty  Mfg.  Co. 
V.  Jersey-Creme  Co.,  200  Fed.  352,  3  L.  R.  A.  (n.s.),  1015  ;  Painter  v.  Colorado 
Springs  &  C.  C.  D.  Ry.  Co.,  127  Mo.  App.  248,  104  S.  W.  1139;  Fond  du  Lac 
C.  &  B.  Co.  V.  Henningsen  P.  Co.,  141  Wis.  70,  123  N.  W.  640.  —Ed. 

1  The  order  of  the  Appellate  Division  was  affirmed  by  the  Court  of  Appeals 
without  opinion,  202  N.  Y.  547.  —  Ed. 


^___^^^...^^,-^, . 


SADLER    V.    BOSTON    &    BOLIVIA    RUBBER   CO.  41 


Appeals,  unless  that  rule  is  violative  of  the  provisions  of  the  Federal 
Constitution,  or  the  Court  of  Appeals  has  itself  rescinded  the  rule 
in  the  Pope  case  and  conformed  to  the  rule  laid  dowTi  by  the  Su- 
preme Court  of  the  United  States.  The  appellant  contends  for 
both  of  these  propositions.  We  do  not  so  understand  the  present 
attitude  of  the  Court  of  Appeals.  Its  latest  expression  upon  the 
subject  is  contained  in  Grant  v.  Cananea  Consolidated  Copper  Co., 
189  N.  Y.  241.  In  that  case,  after  pointing  out  that  the  method 
of  service  now  complained  of  is  in  strict  conformity  to  the  require- 
ments of  the  Code  of  Civil  Procedure  (§432,  subd.  1),  the  court 
said:  "  But  it  is  contended  that  the  provisions  of  the  Code  are 
violative  of  the  provision  of  the  Constitution  of  the  United  States, 
already  referred  to.  This  we  cannot  admit."  But  it  is  argued 
that  in  the  Grant  case  itself  the  Court  of  Appeals  has  abandoned 
its  former  position  and  adopted  that  of  the  Supreme  Court  of  the 
United  States.  This  argument  is  based  upon  the  following  sen- 
tence from  the  opinion  of  the  court:  "While  we  entertain  the 
view  that  our  statute  upon  the  subject  furnishes  the  safer  and  wiser 
rule  to  follow  we  shall  in  this  case  recognize  and  attempt  to  follow 
the  rule  laid  down  by  the  Federal  court."  We  are  unable  to  find 
in  this  expression  any  indication  of  an  intent  to  recede  from  the 
rule  announced  in  the  Pope  case,  where  that  rule  is  applicable. 
The  application  of  the  Federal  rule  is  especially  and  significantly 
limited  to  the  particular  case  then  under  consideration,  and  as  we 
understand  the  sentence  above  quoted,  it  means  nothing  more  than 
the  facts  of  that  case  brought  it  even  within  the  rule  adhered  to 
by  the  Federal  courts.  Being  bound,  as  we  are,  to  follow  the  rule 
of  the  Court  of  Appeals  as  we  understand  it,  we  are  compelled  to 
affirm  the  order  appealed  from. 

The  order  should  be  affirmed,  with  ten  dollars  costs  and  dis- 
bursements. 

Ingraham,  p.  J.,  Miller  and  Dowling,  JJ.,  concurred. 
Clarke,  J.  (concurring): 

The  facts  are  on  all  fours  with  those  presented  upon  a  similar 
motion'  to  set  aside  the  service  of  the  summons  upon  the  same 
grounds  in  Pope  v.  Terre  Haute  Car  Mfg.  Co.,  87  N.  Y.  137,  where 
the  Court  of  Appeals  refused  to  grant  the  motion,  retained  juris- 
diction and  said:  "  A  judgment  to  be  rendered  in  an  action  thus 
commenced  against  a  foreign  corporation  "will  be  valid  for  every 
purpose  wathin  this  State,  and  can  be  enforced  against  any  property 
at  any  time  found  within  this  State.  Its  effect  elsewhere  need  not 
now  be  determined."     In  Grant  y.  Cananea  ConsoUdated  Copper 


42  PROCESS 

Co.,  117  App.  Div.  576, 1  cited  a  long  line  of  cases  in  the  Supreme 
Court  of  the  United  States  rendered  after  the  decision  in  the  Pope 
case,  holding  such  service  void  and  a  judgment  based  thereon  vio- 
lative of  section  1  of  the  14th  amendment  of  the  United  States 
Constitution.  I  believed  then,  and  still  believe,  that  a  Federal 
question  was  involved  and  so  we  were  bound  by  the  rule  laid  down 
by  the  Supreme  Court  of  the  United  States.  But  when  the  Grant 
case  went  to  the  Court  of  Appeals  (189  N.  Y.  241)  that  learned 
court  said  in  reversing  this  court:  *'  But  it  is  contended  that  the 
provisions  of  the  Code  are  violative  of  the  provision  of  the  Consti- 
tution of  the  United  States,  already  referred  to.  This  we  cannot 
admit." 

This  court  is  intermediate,  not  final.  The  orderly  administra- 
tion of  justice  requires  the  subordination  of  individual  views  no 
matter  how  firmly  fixed  to  those  of  our  court  of  last  resort,  espe- 
cially when  they  have  once  been  fully  stated  and  submitted  to  that 
tribunal  for  consideration. 

Therefore,  while  my  personal  opinion  is  unchanged,  namely, 
that  the  service  here  in  question  is  bad  and  ought  to  be  set  aside, 
I  vote  to  uphold  it  and  to  affirm  the  order  appealed  from  upon  the 
direct  authority  of  the  Pope  case  not  weakened  or  modified  by  the 

Grant  Case  (supra). ,^ 

Order  affirmed  with  ten  dollars  costs  and  ^^ursements.y/^^ 

B.    In  Proceedings  in  Rem  and  Qwisi  in  Rem. 
i         DE  ARMAN   v.   MASSEY. 
Supreme  Court  of  Alabama.     1907. 

[Reported  151  Alabama,  G39.] 

McClellan,  J. 2  This  is  an  action  sounding  in  damages  for  an 
alleged  assault  and  battery  committed  by  appellant  on  appellee. 
It  was  begun  by  attachment,  upon  the  ground  that  defendant  was 
an  absconder,  and  there  was  no  personal  service  had  on  the  defend- 
ant. Failing  to  appear,  judgment  by  default  was  entered,  and  on 
writ  of  inquiry  the  jury  assessed  the  damages  at  $2,200.  Upon 
this  finding  the  court  rendered  a  personal  judgment  against  the 
defendant  for  said  sum  and  also  condemned  to  sale  the  real  estate 

1  Jester  v.  Steam  Packet  Co.,  131  N.  C.  54,  42  S.  E.  447,  accord.  —  Ed, 
*  The  statement  of  facta  '\s.  omitted.  —  Ed, 


ir- 


V  /O      ^^   AR1S1A.N  y.    MASSEY  ')   t^^ 

levied  bn.     It  is,  of  couree,  fundamental  that,  witnout  jurisdiction 
of  the  person  obtained,  a  personal  judgment  agaiiist  a  defendant 
cannot  be  vahdly  rendered.     To  secure  such  jurisdiction  the  rule 
was,  prior  to  Bank  v.  Clement,  109  Ala.  270,  19  South.  814,  that 
notice  implied  in  the  levy,  and  service  of  notice  in  the  manner  pre- 
scribed of  the  levy,  though  such  notice  was  not  personally  served 
on  the  defendant,  availed  to  bring  the  defendant  within  the  lawful 
powers  of  the  court.      This  rule  proceeded  on  the  idea  that  the 
proceeding  in  attachment  or  garnishment  was  by  nature  in  'per- 
sonam.    Whatever  may  have  been  the  wisdom  and  soundness  of 
such  a  rule,  long  enforced  by  the  courts  of  this  state,  the  theory  of 
attachments,  in  keeping  with  which  the  mentioned  rule  obtained, 
was  entirely  changed  when  the  Supreme  Court  of  the  United  States, 
in  a  cause  in  which  a  nonresident  was  the  party  defendant,  de- 
clared a  proceeding  in  attachment  or  garnishment  to  be  in  rem,  and 
not  in  'personam.      Accordingly,  in  Bank  v,  Clement,  supra,  this 
court  yielding  a  proper  influence  to  the  announcement  of  the 
Supreme  Court  of  the  United  States  in  a  cause  in  which  that  court   \„ki^q 
had  superior  and  controlling  jurisdiction,  because  of  the  nonresi-  ,         Q 
dence  of  a  party  therein,  accepted  the  principle,  and  applied  it  in  r'^''-^^^^^^'^ 
that  case,  viz.,  that  without  personal  service  a  judgment  in  per- 
sonam against  a  merely  constructively  served  defendant  or  gar-  , 
nishee  could  not  be  validly  rendered,  but  that  the  proceeding  in 
attachment  or  garnishment  being,  in  the  absence  of  personal  ser-  f"^  "^    ''"* 
vice,  in  rem,  the  power  of  the  court  in  the  given  cause  was  strictly    ■■:y  i>s^'-^^ 
limited  to  the  enforcement  of  the  pressed  demand  by  the  subjec- 
tion, if  so  entitled,  of  the  property  levied  on  to  the  satisfaction  of 
the  demand. 
^   So  we  are  not  confronted  with  the  alternative  whether  the  rule 


J^^>-^  \  established  to  the  behoof  of  nonresidents  shall  be  denied  or  applied 
'to  residents  who  are  not  personally  served,  but  whose  property  is 
under  the  ban  of  process  in  attachment  or  garnishment  in  the  courts 
of  this  state.  The  character  of  proceedings,  attachment  or  gar- 
nishment, being  fixed  in  rem,  and  not  in  personam,  we  think  that 
the  principle  stated  compels  the  conclusion  that  no  jurisdiction  to 
render  a  personal  judgment  can  be  validly  acquired  unless  the  ser- 
vice is  personal  and  actual,  rather  than  simply  constructive.  If 
any  other  view  was  entertained,  an  incongruous  situation  would 
result,  to  say  nothing  of  the  ignoring  of  the  principle  upon  which 
the  rule  as  to  nonresidents  is  rested  by  the  Supreme  Court  of  the 
United  States.  To  cling  to  the  earlier  rule  followed  in  this  state 
would  extend  to  the  nonresident  an  exception  which  our  own  courts 


44  PROCESS 

would  deny  to  our  own  citizens.  Independent  of  the  principle 
and  its  consequent  rule,  common  fairness,  if  its  recognition  imparts 
no  other  principle,  demands  that  we  make  no  insidious  distinction 
against  citizens  of  this  state.  It  would  be  the  creation  of  an  in- 
sufferable anomaly  to  hold  that  in  one  class  of  cases  such  proceed- 
ings were  in  rem,  and  in  another  in  personam,.  And  it  may  be  here 
generally  observed  that  where,  in  attachment  or  garnishment  pro- 
ceedings, no  personal  service  was  had,  the  trial  court  should,  in 
accordance  with  its  practices,  ascertain  the  damages  or  debt  to 
which  the  plaintiff  is  entitled,  and  then  render  a  judgment  only  in 
condemnation  of  the  property  subject  to  be  sold,  the  proceeds 
thereof  to  be  applied  to  the  satisfaction!  pro  tanio  oi  the  ascertained 
debt  or  damages.  Care  should  be  taken  to  avoid  the  rendition  of 
a  personal  judgment  in  the  premises.  —  Bank  v.  Clement,  supra. 

There  having  been  no  personal  service  on  the  appellant,  defend- 
ant Delow,  the  judgment  was  erroneously  rendered,  and  so  it  must 
be  reversed,  and  the  cause  remanded.       Reversed  and  remanded.^ 

Tyson,  C.  J.,  and  Dowdell  and  Anderson,  JJ.,  concur. 


/      BATES  V.   CHICAGO,   MILWAUKEE  &   ST.   PAUL 
RAILWAY   COMPANY,  Garnishee,  etc. 

Supreme  Court  of  Wisconsin.     1884. 

[Reported  60  Wisconsin,  296.] 


V    Taylor,  J.^    After  a  careful  consideration  of  the  facts,  and  the 

Warguments  of  the  learned  counsel  for  the  respective  parties,  we 

'  y  have  concluded  that  the  learned  circuit  judge  erred  in  refusing  to 

r    instruct  the  jury  as  requested  by  the  appellant,  and  also  in  ren- 

;>  \    dering  judgment  in  favor  of  the  respondent  upon   the   special 
verdict.  ...  ^ 

p-U     ^  A  personal  judgment  against  a  non-resident  defendant  whose  property 
it/         /      lis-s  been  attached,  but  who  has  not  been  personally  served  with  process  within 
/      the  state,  is  not  valid.     Easterly  w.  Goodwin,  35  Conn.  273;  Eastman  w.  Deaij- 


/  .     born,  63  N.  IL364.     Compare  Emanuel  v.  Symon,  (1908)  1  KTB.  302.     A  few 

»  ■    '  early  cases  intimating  that  jurisdiction  over  the  defendant's  property  gives 

jurisdiction  to  pronounce  a  personal  judgment  against  him,  have,  since  the 

\'        Vdecision  in  Pennoyer  v.  Neff,  95  U.  S.  714,  24  L.  ed.  565,  been  discredited. 

t      yJ,y    Laughlin  v.  Louisiana  &  New  Orleans  Ice  Co.,  35  La.  Ann.  1184.     See  Lydiard 

■  r        V    V.  Chute,  45  Minn.  277,  47  N.  W.  967. 

\y        \  As  to  the  effect  of  a  subsequent  attachment,  see  Roberts  v.  Anheuser  Busch 

Brewing  Ass'n,  215  Mass.  341,  102  N.  E.  316.  —  ICd. 

^  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.      The 


BATES   V.    CHICAGO    MILWAUKEE,    ETC.,    RAILWAY    COMPANY      45 

Notwithstanding  the  general  language  of  our  statute  upon 
the  subject  of  garnishment,  that  "  any  creditor  shall  be  entitled  to 
proceed  by  garnishment,  in  the  circuit  court  of  the  proper  county, 
against  any  person  (except  a  municipal  corporation)  who  shall  be 
indebted  to,  or  have  any  property  whatever,  real  or  personal,  in 
his  possession  or  under  his  control,  belonging  to  such  creditor's 
debtor,  in  the  cases,  upon  the  conditions,  and  in  the  manner  pre- 
scribed in  this  chapter"  (R.  S.,  sec.  2752),  —  we  feel  constrained 
to  hold  that  the  personal  property  or  real  esta^eirTHis  possession 
ju        or  under  his  control  must  be  limited  to  personal  property  or  real 

'A'^^-^^*'^    estate  within  this  state,  and  that  in  the  absence  of  any  fraud  or 

-4A^*^i"'-coilhiyance  on  the  part  of  the  garnishee  to  aid  the  debtor  in  de- 

.'\     frauding  his  creditors,  personal  property  or  real  estate  which  is 

f^^  lawfully  in  the  possession  or  under  the  control  of  the  garnishee  out- 

side of  this  state  is  not  the  subject  of  garnishment  under  our  stat- 
ute. That  personal  chattels  outside  of  the  state,  which,  if  within 
the  state  could  be  seized  by  attachment  or  execution,  were  not  in- 
tended to  be  covered  by  the  titatute,  is,  we  think,  evident. 

The  attachment  of  the  debtor's  property  before  judgment  has 
always  been  considered  a  harsh  remedy  in  this  state,  but  that  writ 
can  only  reach  the  property  of  the  debtor  \^dthin  the  state.  R.  S., 
sec.  2738.  The  garnishee  process  is  in  the  nature  of  an  attachment, 
and  was  first  used  to  attach  the  credits  of  the  debtor  and  apply 
them  to  the  payment  of  his  debts,  but  it  has  been  extended  in  this 
state  so  as  to  attach,  ■v\dthout  actual  seizure,  the  personal  property 
and  real  estate  of  the  debtor  in  the  possession  or  under  the  control 
of  third  persons,  so  as  to  apply  such  property  to  the  payment  of  his 
debts.  We  do  not  feel  called  upon  to  give  this  statute,  which  is  in 
its  nature  a  harsh  remedy,  a  construction  which  would  give  the 
courts  under  it  the  highest  powers  of  a  court  of  chancery,  viz.,  the 
power  to  compel  a  debtor  to  surrender  his  property  held  within  a 
foreign  jurisdiction,  to  be  applied  to  the  payment  of  his  debts 
within  this  state.  If  under  this  statute  the  circuit  court  can  exer- 
cise this  power,  then  any  justice  of  the  peace  may,  for  the  same 
language  is  used  in  the  statute  which  gives  the  power  to  justices' 
courts  over  the  garnishee  process  that  is  used  with  respect  to  circuit 
courts,  except  that  it  leaves  out  the  words  "  or  real  estate."  As  to 
personal  property  the  language  is  the  same.     R.  S.,  sec.  3716. 

circuit  judge  had  refused  to  instruct  the  jury  to  find  for  the  defendant  if  the 
goods  in  question  were  outside  the  state  of  Wisconsin  at  the  time  the  garnishee 
Bumnions  was  served;  and  had  rendered  judgment  for  the  plaintiff  although 
the  jiu-y  found  specially  that  the  goods  were  outside  the  state  at  that 
time.  —  Ed. 


46  PROCESS 

fThe  statutes  of  this  state,  considered  together  and  as  one  system, 
clearly  indicate  that  the  personal  property  which  may  be  arrested 
in  the  hands  of  a  garnishee  must  be  within  the  state,  so  that  it  may 
be  seized  and  sold  to  satisfy  any  judgment  obtained  against  the 
principal  debtor.  ^  Sec,  2762,  R.  S.,  relating  to  the  proceedings  in 
the  circuit  court,  says:  "  If  the  answer  disclose  any  money,  credits, 
or  other  property,  real  or  personal,  in  the  possession  or  under  the 
control  of  the  garnishee,  the  officer  having  a  writ  of  attachment  or 
an  execution,  if  any,  may  levy  upon  the  interest  of  the  defendant 
in  the  same;  otherwise  the  garnishee  shall  hold  the  same  until  the 
order  of  the  court  thereon."  The  last  clause  of  the  section  evi- 
dently relates  to  the  cases  where  the  garnishee  is  summoned  in  an 
action  not  commenced  by  attachment,  and  in  such  cases  he  must 
hold  the  property  to  await  the  judgment  of  the  court  in  the  prin- 
cipal action.  The  act  giving  jurisdiction  of  the  proceedings  to 
justices  of  the  peace,  provides  as  follows:  "  The  justice  shall  enter 
an  order  in  his  docket,  requiring  the  garnishee,  within  ten  clays,  to 
pay  or  deliver  to  the  justice  such  property,  or  the  amount  of  such 
indebtedness,  or  so  much  thereof  as  may  be  necessary  to  satisfy 
such  judgment;  .  .  .  and  all  property  and  effects,  except  money 
delivered  to  the  justice,  shall  be  by  him  ordered  to  be  sold  on  the 
execution  against  the  defendant."     R.  S.,  sec.  3725. 

These  provisions  clearly  indicate  that  the  personal  property  to 
be  reached  in  the  hands  of  a  garnishee  is  such  as  would  be  subject 
to  seizure  by  the  writ  of  attachment  or  execution,  if  they  were  in 
the  possession  of  the  principal  debtor.  It  is  unnecessary  to  inti- 
mate the  difficulties  and  hardships  which  would  result  from  the 
enforcement  of  a  rule  against  garnishees  compelling  them  to  deliver 
up  to  the  processes  of  the  courts  of  this  state  any  property  they  may 
have  under  their  control,  belonging  to  the  principal  debtor,  situated 
in  another  state.  The  difficulty  in  the  case  at  l)ar  might  not  be 
great,  because  the  property,  although  in  fact  out  of  the  state  when 
the  garnishee  summons  was  served,  was  not  as  distant  from  the 
place  where  the  court  was  held,  which  issued  it,  as  it  might  have 
been  within  the  state.  But  the  rule,  if  established,  must  be  general, 
so  that  if  property  just  beyond  the  line  of  the  state  may  be  reached, 
then  property  in  Maine,  Louisiana,  or  California,  or  in  any  foreign 
country,  may  also  be  reached  and  held.  The  difficulties  and  in- 
justice of  enforcing  such  a  rule  are  apparent.  The  only  case  cited 
by  the  learned  counsel  for  the  respondent  in  which  any  court  has 
held  that  personal  property  out  of  the  state,  in  which  the  gar- 
nishee process  was  issued,  could  be  reached  and  held  by  it,  is  Childs 


NICHOLS    V.    HOOPER  47 

V.  Digby,  24  Pa.  St.  23.  That  case  was  disapproved  as  bad  law 
by  the  same  court  in  Penn.  R.  R.  Co.  v.  Pennoclc,  51  Pa.  St.  244. 
The  position  taken  by  us  upon  this  question  is  approved  by  the 
Pennsylvania  court  in  the  case  last  cited,  and  also  in  the  following 
cases:  Western  R,  R.  v.  Thornton,  60  Ga.  300;  Sutherland  v. 
Second  Nat.  Bank,  78  Ky.  250;  Wheat  v.  P.  C.  &  Ft.  D.  R.  R. 
Co.,  4  Kan.  370,  378;  I.  C.  R.  R.  Co.  v.  Cobb,  48  111.  402;  Law- 
rence V.  Smith,  45  N.  H.  533;  Tingley  v.  Bateman,  10  Mass.  343, 
346;  Clark  v.  Brewer,  6  Gray,  320;  Young  v.  Ross,  11  Foster,  201. 

It  is  urged  by  the  learned  counsel  for  the  respondent  that  the 
garnishee  should  be  held  for  property  in  his  control  out  of  the  state, 
because  the  court  could  enforce  its  order  against  the  person  of  the 
garnishee,  over  whom  it  has  jurisdiction,  in  like  manner  as  a  court 
of  equity  sometimes  enforces  a  contract  between  the  parties  to  the 
action  to  convey  lands  situated  in  another  state.  Our  answer  to 
that  argument  is,  as  stated  above,  that  it  is  clear  that  the  legislature 
did  not  intend  to  confer  these  high  equity  powers  upon  the  courts 
having  jurisdiction  of  the  garnishee  process.  It  is  unnecessary, 
therefore,  to  discuss  the  question  of  the  power  of  the  legislature  to 
confer  upon  the  courts  of  this  state  the  authority  to  appropriate 
the  personal  property  or  real  estate  of  a  debtor,  situate  in  another 
state  or  foreign  country,  to  the  payment  of  his  debts  in  this 
state.  .  .  . 

By  the  Court.  The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  remanded  with  instructions  to  that  court  to  enter  a 
judgment  upon  the  special  verdict  in  favor  of  the  garnishee  de- 
fendant.^ 

Z  NICHOLS   V.   HOOPER  et  at. 

Supreme  Court  of  Vermont.     1889. 

[Reported  61  Vermont,  295.] 

This  was  an   action    of   general    assumpsit,  heard  before  the  ^ 

Municipal  Court  for  the  village  of  Rutland,  September  3,  1888,        - 
Lawrence,  J.     Plea,  the  general  issue,  and  trial  by  the  court. 

The  plaintiff  sought  to  recover  the  amount  of  a  promissory  note, 
executed  and  made  payable  in  the  State  of  New  York.  The  parties 
were  all  residents  of  the  State  of  New  York,  except  the  trustee^    kx.'v^a-*— ^ 

^      -    \  >  r    j^^^ 

^  As  to  garnishment  of  a  carrier  holding  goods  within  the  state,  see  Adanis  t;.|i'"^-''*'T*''^'''^ 
Scott,  104  Mass.  164;  Stevenot  v.  Eastern  Ry.  Co.,  61  Mian.  104,  63  N.  W.  C frru,,yv^<jifC 
256,  28  L.  R.  A.  600.     As  to  attachment  in  such  case,  see  CUfford  v.  Brockton  ' 
Transportation  Co.,  214  Mass.  466,  101  N.  E.  1092.  —  Ed. 


^^^^.^.^^cuM  A— ^  ^ 


/is   '  PROCESS 

The  writ  was  served  on  the  trustee  July  27th.  On  the  24th  day  of 
July  the  debt  due  from  the  trustee  had  been  assigned  by  the  defen- 
dant to  S.  C.  Hooper,  claimant  in  this  suit,  but  the  trustee  did  not 
receive  notice  of  this  assignment  until  July  29th.  On  the  27th  of 
July  the  defendant  made,  in  the  State  of  New  York,  a  general 
assignment  for  the  benefit  of  creditors  to  the  claimant,  Hodgeman, 
but  no  notice  of  this  latter  assignment  was  given  the  trustee.         .._. 

Upon  these  facts  the  court  rendered  judgment,  projorma,  for   Ij 
the  plaintiff,  and  that  the  trustee  was  chargeable,  to  which  the    /    ^ 
defendants  and  claimants  excepted.  f 

Taft,  J.     The  plaintiff,  defendant  and  claimants  reside  in  New 
York;  the  debt  the  plaintiff  is  seeking  to  recover,  and  the  one  due 
>  the  principal  defendant  from  the  trustee,  were  contracted,  and,  in 

law,  are  payable  in  New  York.  The  trustee  resides  in  this  State 
and  can  be  held  liable,  although  the  parties  reside  elsewhere,  and 
the  debt  was  contracted  and  payable  elsewhere.  Towle  v.  Wilder, 
57  Vt.  622,  is  cited  by  claimants.  No  opinion  was  written;  we  do 
not  know  upon  what  point  the  case  turned,  and  see  no  reason  for 
following  it.  The  claimants  attempt  to  hold  the  funds  in  the  trus- 
tee's hands  by  virtue  of  assigmnents  of  the  debt;  one  executed 
prior  to  the  service  of  the  trustee  process,  the  other  a  general  one 
for  the  benefit  of  creditors,  on  the  day  of  the  service.  The  trustee 
did  not  receive  notice  of  the  assignments  prior  to  the  service  of  the 
trustee  process  upon  him.  The  assigimients  were  valid,  but  are 
not  operative  against  the  trustee  process,  notice  of  the  assignments 
not  having  been  given  to  the  trustee  by  the  assignees.  Such  notice 
was  necessary  to  save  the  debt  from  the  trustee  process.  It  is 
needless  to  cite  cases  to  show  the  necessity  of  such  notice. 
,   ,  Judgment  affirmed.^ 


1  See  on  the  matter  of  jurisdiction  for  purposes  of  garnishment,  Chicago, 
etc.,  Ey.  Co.  v.  Stu'rm,  174  U.  S.  710,  43  L.  ed.  1144,  19  S.  Ct.  797;  Harris  v. 
Balk,  198  U.  S.  215,  49  L.  ed.  1023,  25  S.  Ct.  625,  3  Ann.  Cas.  1084;  Shuttle- 
worth  &  Co.  V.  Marx  &  Co.,  159  Ala.  418,  49  So.  83;  Lancashire  Ins.  Co.  v.  Cor- 
betts,  165  III.  592,  46  N.  E.  631;  Bullard  v.  Chaffee,  61  Neb.  83,  84  N.  W.  604, 
51  L.  R.  A.  715;  Douglass  v.  Phenix  Ins.  Co.,  138  N.  Y.  209,  33  N.  E. 
938.  — Ed. 


n/ 


\ 


CLOYD    V.    TROTTER  49 

i     CLOYD   V.   TROTTER. 
Supreme  Court  of  Illinois.     1886. 
[Reported  118  Illinois,  391.] 

Scott,  C.  J.^  The  bill  in  this  case  was  brought  in  the  circuit 
court  of  Wayne  county,  by  William  Trotter,  against  James  C. 
Cloyd,  and  was  to  remove  a  cloud  from  the  title  to  property  which 
complainant  claimed  to  own.      A  decree  was  rendered  in  accord-  j  i 

ance  with  the  prayer  of  the  bill,  and  as  the  title  to  the  property  is      i    1    ' 
involved,  d§|eiidantbrings  the  case  directly  to  this  court  on  error,      j-'  • 
as  he  is  authorized  byTaw^trTdo. 

No  question  is  raised  on  the  bill,  and  the  assignment  of  errors 
does  not  make  any  discussion  of  the  merits  of  the  case  necessary. 
Defendant  is  a  non-resident  of  the  State  of  Illinois,  and  the  service 
upon  him  was  by  a  service  of  a  copy  of  the  bill  upon  him,  at  his 
residence  in  the  city  of  New  York.  It  is  objected,  the  service  was 
insufficient,  and  as  there  was  no  appearance  by  defendant,  or  by 
any  solicitor  for  him,  the  court  had  no  jurisdiction  to  render  the 
decree  it  did.  Section  14  of  the  Chancery  act  (Rev.  Stat.  1874,  V 
p.  200),  provides:  "  The  complainant  may  cause  a  copy  of  the  bill, 
together  with  a  notice  of  the  commencement  of  the  suit,  to  be  de- 
livered to  any  defendant  residing  or  being  without  this  State,  not 
less  than  thirty  days  previous  to  the  commencement  of  the  term  at 
which  such  defendant  is  required  to  appear,  which  service,  when 
proved  to  the  satisfaction  of  the  court,  shall  be  as  effectual  as  if 
such  service  had  been  made  in  the  usual  form  within  the  limits  of  _ 
this  State."  .  .  . 

The  third  error  of  the  series,  viz.,  the  court  erred  in  entering  a     ^ 
personal  judgment  against  defendant  for  costs,  and  in  awarding  -  r-^"*^^ 
execution  agamst  him  for  the  collection  of  the  same,  seems  to  be   <rt*'^y^ 
well  assigned.     There  was  no  appearance  in  the  court  below,  either 
by  defendant,  or  any  solicitor  for  him,  and  it  is  not  perceived  how 
that  court  obtained  jurisdiction  of  his  person  so  as  to  render  a  per- 
sonal decree  against  him,  for  costs  or  otherwise,  and  to  award  exe- 
cution against  him  as  for  the  collection  of  a  personal  money  decree. 
So  far  as  the  property  situated  within  the  jurisdiction  of  the  court 
is  involved,  the  court  had  jurisdiction  to  decree  concerning  it,  and 
defendant,  and  all  parties  claiming  through  or  under  him,  would 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


50 


PROCESS 


■\^^ 


be  bound.  But  that  fact  gave  no  jurisdiction  to  the  court  to  ren- 
der a  personal  money  decree  against  him,  as  the  court  might  do  if 
defendant  had  been  within  its  jurisdiction.  It  affirmatively  ap- 
pears in  this  case,  defendant  resided  in  another  State.  Treating 
the  service  by  copy  of  the  bill,  and  notice  of  the  commencement  of 
the  suit,  as  effectual  "  as  if  such  service  had  been  made  in  the  usual 
form  within  the  limits  of  this  State,"  as  the  Statute  provides  shall 
be  done,  still  such  service  does  not  confer  jurisdiction  on  the  court, 
of  the  person  of  defendant,  so  as  to  enable  it  to  render  a  personal 
money  decree  against  him,  to  be  collected  by  execution.  No  one 
will  insist  the  court  could  send  its  process  out  of  the  State,  and  by 
proof  of  service  within  a  foreign  State  acquire  jurisdiction  over  the 
person  of  defendant,  so  as  to  render  a  personal  money  decree 
against  him.  It  is  so  obvious  it  need  not  be  stated,  that  persons  \ 
residing  or  being  without  the  limits  of  this  State  cannot  be  sub-  « 
jected  to  the  jurisdiction  of  the  local  courts  by  the  service  of  proc-  | 
ess  or  other  service  upon  them  at  the  place  of  their  domicil. 

The  decree  of  the  circuit  court,  so  far  as  it  adjudged  costs  against 
defendant,  and  awarded  execution  for  the  collection  of  the  same, 
will  be  reversed  in  this  court,  but  in  all  other  respects  it  will  be 
affirmed;  and  as  he  ought,  on  account  of  the  wrongful  conduct 
alleged  against  him  in  the  bill,  to  pay  such  costs,  plaintiff  in  error 
will  be.required  to  pay  all  costs  in  this  case  in  this  court. 

'*"  Decree  reversed  in  yart  and  in  part  affirmed.^ 


Magruder  and  Craig,  J  J.,  dissent  from  so  much  of  the  fore- 
going opinion  as  reverses  the  judgment  for  costs. 

1  When  the  court  has  jurisdiction  of  the  res  (property  or  status)  but  not  of 
the  person  of  the  defendant,  the  judgment  so  far  as  it  operates  in  rem  is  upheld, 
but  so  far  as  it  attempts  to  impose  a  personal  liability  on  the  defendant  it  is,.^ 
invaUd.  Dewey  v.  Dos  Moines,  173  U.  S.  193,  43  L.  ed.  665,  19  S.  Ct.  379; 
Beard  v.  Beard,  21  Ind.  321;  Elmendorf  v.  Elmendorf,  58  N.  J.  Eq.  113,  44 
Atl.  164;  Sch winger  v.  Hickok,  53  N.  Y.  280,  accord.  But  compare  Phillips  v. 
Batho,  (1913)  3  K.  B.  25.  ^ 

._-—    On  the  other  hand,  the  court  cannot  render  a  valid  judgment  in  rem  where    \ 
j  the  property  is  outside  the  jurisdiction. 

As  to  service  of  summons  by  publication  in  case  of  unknown  persons,  see 
Arndt  v.  Griggs,  134  U.  S.  316,  33  L.  ed.  918,  10  S.  Ct.  557;  Ballard  v.  Hunter, 
204  U.  S.  241,  51  L.  cd.  461,  27  8.  Ct.  261;  Birmingham  Realty  Co.  v.  Barron, 
150  Ala.  232,  43  So.  346;  Guise  v.  Early,  72  la.  283,  33  N.  W.  683;  Tyler  v. 
Judges,  175  Mass.  71,  55  N.  E.  812;  Ingle  v.  Welles,  53  Minn.  197,  55  N.  W. 
117;  McClymond  v.  Noble,  84  Minn.  329,  87  N.  W.  838,  87  Am.  St.  Rep.  354; 
Piser  V.  Lockwood,  30  Hun.  (N.  Y.),  6. 

The  statutory  provisions  as  to  constructive  service  must  be  strictly  com- 
plied with.     Correll  v.  Greider,  245  III.  378,  92  N.  E.  266,  137  Am.  St.  Rep. 


MIEDREICH   V.    LAUENSTEIN  51 

Section   III. 
Return  of  Service. 

I     MIEDREICH   V.   LAUENSTEIN. 
Supreme  Court  of  the  United  States.     1914. 

[Reported  232  United  States,  236.] 

Day,  J.^  The  plaintiff  in  error,  by  complaint  filed  in  the 
Superior  Court  of  Vanderburgh  County,  State  of  Indiana,  sought 
to  vacate  a  judgment  of  foreclosure  rendered  by  that  court  in  a 
prior  case  and  to  be  permitted  to  redeem  the  property  therein  in- 
volved and  praj^s  for  other  relief,  and,  judgment  having  been 
entered  in  favor  of  the  defendant  in  error,  which  was  affirmed  by 
the  Supreme  Court  of  Indiana  (172  Indiana,  140),  this  writ  of  error 
was  sued  out.  ^^r^ 

The  facts,  so  far  as  pertinent  to  our  review,  are :  The  complaint, 
in  the  fourth  paragraph,  alleged  that  the  plaintiff  in  error  was  the 
owner  of  certain  property,  subject  to  a  mortgage  foreclosed  in  a 
former  suit;  that  she  was  a  minor  when  the  foreclosure  proceedings 
were  had;  that  she  was  not  a  resident  of  Vanderburgh  County, 
where  the  action  was  brought,  but  was  and  had  been  for  many 
years  a  resident  of  Gibson  County,  and  that  she  was  not  summoned 
in  such  action,  had  no  knowledge  of  its  pendency,  and  did  not 
waive  service  or  enter  her  appearance  therein.  It  was  further 
alleged  that  the  plaintiff  in  error  was  not ^m enable  to  the  jurisdic- 
tion of  the  sheriff  of  Vanderburgh  County,  but  that,  although  she 
was  not  served  with  process,  he  made  a  false  return  of  a  pretended 
summons,  by  which  the  court  was  wrongfully  imposed  upon,  and, 
being  so  advised,  at  the  instance  of  attorneys  for  the  predecessor 
of  defendant  in  error,  the  court  appointed  a  guardian  ad  litem  for 
her,  who  answered  in  the  suit,  and  that  a  decree  was  rendered,  her 
property  sold  and  bid  in  by  the  predecessor  of  the  defendant  in 
error.  The  demurrer  of  the  defendant  in  error  to  this  paragraph 
thus  construed  was  sustained  by  the  lower  court  and  its  decision 
affirmed  by  the  Supreme  Court.      Other  paragraphs  of  the  com- 

327;  McCracken  v.  Flanagan,  127  N.  Y.  493,  24  Am.  St.  Rep.  481.  As  to 
the  effect  of  a  mistake  or  omission  in  the  name  of  the  defendant,  see  Fanning 
V.  Krapfl,  68  la.  244;  D'Autremont  v.  Anderson  Iron  Co.,  104  Minn.  165,  116 
N.  W.  357,  17  L.  R.  A.  (n.s.),  236,  124  Am.  St.  Rep.  615,  15  Ann.  Cas.  114; 
Proctor  V.  Nance,  220  Mo.  104,  119  S.  W.  409,  132  Am.  St.  Rep.  555. 
^  A  part  of  the  opinion  is  omitted.  —  Ed. 


52  PROCESS 

plaint  alleged  fraud  on  the  part  of  the  predecessor  of  the  defendant 
in  error  and  her  attorneys.  The  lower  court  found  against  this 
charge,  and  the  Supreme  Court,  after  stating  that  there  was  legal 
evidence  to  support  the  finding,  refused  to  disturb  it.  .  .  . 

The  question  then  is,  does  the  ruling  predicated  upon  the  prin- 
ciples thus  stated,  made  in  the  state  court  wherein  the  party  has 
been  duly  heard,  amount  to  a  denial  of  due  process  of  law  within 
the  meaning  of  the  Federal  Constitution  ?  .  .  . 

In  the  present  case  the  State  has  made  provision  for  the  service 
of  process,  and  the  original  party  in  the  foreclosure  proceeding  did 
all  that  the  law  required  in  the  issue  of  and  attempt  to  serve  proc- 
ess; and,  without  fraud  or  collusion,  the  sheriff  made  a  return  to 
the  court  that  service  had  been  duly  made.  The  duty  of  making 
such  service  and  return  by  the  law  of  the  State  is  delegated  to  the 
sheriff,  and,  although  contrary  to  the  fact,  in  the  absence  of  any 
attack  upon  it,  the  court  was  justified  in  acting  upon  such  return 
as  upon  a  true  return.  If  the  return  is  false  the  law  of  the  State, 
as  set  forth  by  its  Supreme  Court,  permitted  a  recovery  against 
the  sheriff  upon  his  bond.  We  are  of  the  opinion  that  this  system 
of  jurisprudence,  with  its  provisions  for  safeguarding  the  rights  of 
litigants,  is  due  process  of  law.  It  may  result,  unfortunately,  as 
is  said  to  be  the  fact  in  this  case,  that  the  recovery  upon  the 
sheriff's  bond  will  not  be  an  adequate  remedy,  but  statutes  must 
be  framed  and  laws  administered  so  as  to  protect  as  far  as  may  be 
all  litigants  and  other  persons  who  derive  rights  from  the  judg- 
ments of  courts.  So  far  as  this  record  discloses  the  purchaser  at 
the  sheriff's  sale  had  a  right  to  rely  upon  the  record,  which  imported 
verity  as  to  the  nature  of  the  service  upon  the  plaintiff  in  error. 
If  this  were  not  true,  as  the  Supreme  Court  of  Indiana  points  out, 
there  would  be  no  protection  to  parties  who  have  rehed  upon  judi- 
cial proceedings  importing  verity,  upon  the  faith  of  which  rights 
have  been  adjudicated  and  value  parted  with.  In  a  case  of  this 
character  the  law  must  have  in  view,  not  only  the  rights  of  the 
defendant  who  has  been  a  victim  of  a  false  return  on  the  part  of 
the  sheriff,  but  of  persons  who  have  relied  upon  the  regularity  of 
the  return  of  officials  necessarily  trusted  by  law  with  the  responsi- 
bility of  advising  the  court  as  to  the  performance  of  such  duties 
as  are  here  involved.  Were  the  law  otherwise  titles  might  be 
^1  attacked  many  years  after  they  were  acquired,  where  the  party 

had  been  guilty  of  no  fraud  and  had  acted  upon  the  faith  of  judicial 
proceedings  apparently  perfect  in  every  respect. 


/ 


SHELDON   V.    COMSTOCK  53 

This  has  been  the  rule  of  law  applied  to  a  similar  situation  in  the 
courts  of  other  States.  Gregory  v.  Ford,  14  California,  138;  Stites 
V.  Knapp,  Ga.  Dec.  36,  pt.  2;  Taylor  v.  Lewis,  25  Kentucky,  400; 
Gardner  v.  Jenkins,  14  Marjdand,  58;  Smoot  v.  Judd,  184  Missouri, 
508;  Johnson  v.  Jones,  2  Nebraska,  126;  Wardsboro  v.  Whiting- 
ham,  45  Vermont,  450;  Preston  v.  Kindrick,  94  Virginia,  760.  And 
see  in  this  connection  Walker  v.  Robbins,  14  How.  584,  585;  Knox 
County  V.  Harshman,  133  U.  S.  152,  156. 

Without  the  necessity  of  deciding  more  in  the  present  case,  it  is 
enough  to  say  that  the  decision  of  the  Supreme  Court  of  Indiana, 
made  under  the  circumstances  detailed,  did  not  in  our  opinion 
deprive  the  plaintiff  in  error  of  due  process  of  law  within  the  mean- 
ing of  the  Fourteenth  Amendment. 

It  follows  that  the  judgment  of  the  Supreme  Court  of  Indiana 
should  be  affirmed.  Judgment  affirmed.^ 


I    SHELDON  V.    COMSTOCK 
Supreme  Court  of  Rhode  Island.     1854. 

[Reported  3  Rhode  Island,  84.] 

The  writ  in  this  action  was  served  by  attaching  certain  articles 
of  personal  property.  The  return  of  the  officer,  as  originally  made, 
set  forth  the  attachment  with  the  time  and  place,  but^id  not  state 
that  immediately  after  making  the  attachment  he  left  an  attested 
copy  of  the  writ  with  a  copy  of  his  doings  thereon  at  the  defendant's 
usual  place  of  abode,  ^with  some  person  there,  as  is  required  by 
sec.  3  of  the  act  entitled  "  an  act  prescribing  the  forms  of  writs 
and  the  manner  of  serving  them." 

The  defendant  filed  his  motion  to  dismiss  the  action  for  want  of 
service,  whereupon  the  officer  also  moved  the  Court  for  liberty  to 

^  There  is  a  considerable  diversity  of  opinion  as  to  how  far  the  sheriff's 
return  is  conclusive.  See  Carleton  v.  Bickford,  13  Gray  (Mass.),  591;  Michels 
V.  Stork,  52  Mich.  260,  17  N.  W.  833;  Smoot  v.  Judd,  184  Mo.  508,  83^  S.  W. 
481;  Reiger  v.  MuUins,  210  Mo.  5G3,  109  S.  W.  26,  124  Am.  St.  Rep.  755; 
Goble  V.  Brenneman,  75  Neb.  309,  106  N.  W.  440,  121  Am.  St.  Rep.  813; 
Flowers  v.  King,  145  N.  C.  234,  58  S.  E.  1074,  122  Am.  St.  Rep.  444; 
Knutson  v.  Davies,  51  Minn.  363,  53  N.  W.  646;  Alderson,  Judicial  Writs  and 
Process,  sees.  193-197;  32  Cyc.  514;  18  Encyc.  of  PI.  &  Pr.  965;  124  Am.  St. 
Rep.  756. 

An  affidavit  of  service  by  a  private  person  is  open  to  attack.  Campbell  v. 
Donovan,  111  Mich.  247,  69  N.  W.  514;  Allen  v.  Mclntyre,  56  Minn.  351,  57 
N.  W.  1060;  O'Connor  v.  Felix,  147  N.  Y.  614,  42  N.  E.  269.  —  Ed. 


54  PROCESS 

amend  his  return,  by  adding  to  it  the  following  words:  "  and  have 
left  a  true  and  attested  copy  of  this  writ,  by  direction  of  the  de- 
fendant, with  his,  defendant's  attorney,  Paul  Todd,  in  whose 
hands  defendant  stated  his  affairs  to  be  placed." 

The  defendant  contended  that  the  return,  if  amended  as  pro- 
posed by  the  officer,  would  still  be  insufficient,  and  persisted  in  his 
motion  to  dismiss  the  action.  -    t^ 

Staples,  C.  J.  Motions  by  officers  for  leave  to  amend  their  \/^ 
returns  on  i mesne  process  are  of  very  frequent  occurrence.  When"^, 
made  at  the  return  term,  or  during  the  pendency  of  the  suit,  they 
have  generally  been  granted,  and  almost  as  a  matter  of  course. 
The  leave  so  given  is  to  spread  on  the  record  proper  evidence  of  all 
that  the  officer  actually  did  on  the  service  of  the  process  com- 
mitted to  him,  to  correct  the  omissions  and  errors  in  his  return. 

We  are  of  the  opinion  that  the  officer's  return,  amended  accord- 
ing to  his  motion,  would  still  be  insufficient. 

An  officer's  return  on  process  of  every  kind  should  state  that  he 
has  performed  what  the  mandatory  part  of  the  process  required 
of  him.  It  should  contain  a  statement  of  the  acts  which  he  has 
done  under  and  by  virtue  of  it,  and  the  place  and  the  time  when 
and  where  they  were  done.  His  office  is  simply  ministerial. 
Hence  it  is  insufficient  for  him  to  return  that  he  has  duly  or  legally 
served  the  process  committed  to  him.  He  should  set  forth  what 
he  did,  and  when  and  where,  and  leave  the  question  of  the  legality 
of  his  proceedings  to  some  judicial  tribunal. 

Where  the  law  prescribes  any  particular  forms  or  proceedings  in 
the  service  of  process,  the  return  of  the  officer  should  show  that 
they  were  specifically  complied  with.     The  return  should  set  them 
forth  as  fully  and  circumstantially  as  though  they  had  been  spe- 
cially required  in  the  mandatory  part  of  the  process.  All  this  should      w-^ 
be  in  the  return,  and  as  a  general  thing  nothing  more.      But  if     Jr 
more  be  added,  although  it  may  not  yitiatethe  return,  it  will  not ' 
be  considered  as  part  of  it.      The  facts  essential  to  a  return  are 
taken  as  conclusively  proved,  if  stated  in  it,  except  in  those  cases 
where  express  provision  to  the  contrary  is  made  by  statute,  and 
except  in  suits  against  the  officer  making  it  for  a  false  return. 
The  return  of  the  officer  is  the  only  proper  evidence  to  prove  those 
facts.      If  other  facts  are  contained  in  the  return,  they  are  to  be 
rejected.      The  officer's   return    is  no  proper  evidence  of  their 
truth. 

In  the  present  case  the  law  required  the  officer  making  the 
attachment,  immediately  after  making  it,  "  to  leave  an  attested 


SHELDON   V.    COMSTOCK  55 

copy  of  the  writ,  with  a  copy  of  his  doings  thereon,  at  the  defend- 
ant's usual  place  of  abode,  with  some  person  there."  The  return 
as  originally  made,  contains  no  averment  of  this  fact  and  as  pro- 
posed to  be  amended,  it  is  equally  faulty.  No  copy  was  left  where 
the  law  required  one  should  be  left.  The  return,  as  amended,  will 
state  that  the  officer  did  leave  a  copy  "  by  directions  of  the  defend- 
ant with  the  defendant's  attorney,  Paul  Todd,  in  whose  hands 
defendant  stated  his  affairs  to  be  placed."  No  law  required  the 
officer  to  do  this.  It  was  no  part  of  his  duty.  The  facts  set  forth 
form  no  essential  part  of  his  return.  They  are  not  therefore  proved 
by  the  return.  The  facts  therefore  do  not  exist  —  but  if  they 
existed  would  not  constitute  a  sufficient  return  to  the  writ. 

The  plaintiff's  counsel  contended  that  the  statute  afore  referred 
to  gives  a  reason  for  the  leaving  of  a  copy,  to  wit:  "  that  the  de- 
fendant may  have  knowledge  of  the  suit,"  and  that  it  appears  by 
the  return  that  the  defendant  did  have  actual  knowledge  of  the 
suit,  and  did  direct  where  the  copy  should  be  left,  and  that  it  was 
left  there. 

Two  sufficient  answers  to  this  suggestion  appear  in  the  general 
principles  hereinbefore  recited.  First  —  the  officer's  return  is  no 
evidence  of  these  facts,  they  not  being  necessary  parts  of  a  suffi- 
cient return  to  his  writ.  And  second  —  if  taken  to  be  true, 
they  are  not  the  formalities  required  by  law,  nor  even  a  substantial 
compliance  with  the  law.  Courts  are  required  to  infer  a  knowledge 
of  the  suit  in  the  defendant  when  the  requisites  of  the  law  are 
complied  with.  If  they  should  infer  it  from  the  statements  of  the 
officer  in  his  return,  which  are  not  required  of  him,  but  which 
would  seem  to  imply  more  certain  knowledge  than  the  bare  leav- 
ing a  copy  at  the  defendant's  usual  place  of  abode,  ought  not  a 
similar  inference  to  be  drawn  from  the  same  facts  proved  by  other 
witnesses,  or  from  other  facts  some  way  established,  involving  a 
little  less  certainty  ?  If  so,  how  much  less  ?  The  only  safe  con- 
struction is  a  substantial  compliance  with  the  statute  requisitions, 
established  by  the  proper  evidence.^ 

1  As  to  amendments  of  the  sheriff's  return,  see  Palmer  v.  Thayer,  28  Conn. 
237;  Jones  v.  Bibb  Brick  Co.,  120  Ga.  321,  48  S.  E.  25;  O'Conner  v.  Wilson,  57 
111.  226;  Bryant  v.  Knapp,  103  Me.  139,  68  Atl.  640;  Main  v.  Lynch,  54  Md. 
658;  Emerson  v.  Upton,  9  Pick.  (Mass.),  167;  Kahn  v.  Mercantile,  etc.,  Ins. 
Co.,  228  Mo.  585,  128  S.  W.  995,  137  Am.  St.  Rep.  665;  Stealman  v.  Green- 
wood, 113  N.  C.  355,  18  S.  E.  503;  Alderson,  Judicial  Writs  and  Process,  sec. 
192;  32  Cyc.  537;   18  Encyc.  of  PI.  &  Pr.  950. 


y\. 


56  PROCESS 

Affidavits  of  service  may  be  amended.  Woodward  v.  Brown,  119  Cal.  283, 
51  Pac.  2. 

For  forms  of  returns  of  personal  service  of  process  on  a  single  individual 
defendant,  see  Section  1  of  this  Chapter. 

The  following  is  a  form  of  affidavit  of  personal  service  of  summons  by  a 
private  person  on  a  single  individual  defendant : 

[Title] 

County  of ,  ss. 

X,  being  duly  sworn,  says  that  he  is the  age  of years,  and  that  on 

the day  of ,  19 — ,  at ,  he  served  the  annexed  [or  within]  sum- 
mons and  [here  insert  names  of  papers  served  with  summons,  if  any],  on 

defendant  in  this  action,  by  dehvering  a  copy  of  the  same  to  such  defendant 
personally  and  leaving  the  same  with  him.  He  further  says,that  he  knew  the 
person  served  as  aforesaid  to  be  the  person  mentioned  and  described  in  the 
said  summons  as  the  defendant  in  this  action. 

Sworn  to  before,  me,  this day  of ,  19 — . 

See  French  v.  Ajax  Oil,  etc.,  Co.,  44  Wash.  305,  87  Pac.  359.  —Ed. 


^i     V*^ 


CHAPTER  III. 
APPEARANCE. 

/     ST.  LOUIS  CAR  COMPANY  v.  STILLWATER  STREET 
RAILWAY  COMPANY. 

Supreme  Court  of  Minnesota.     1893. 
[Reported  53  Minnesota,  129.] 

Mitchell,  J.^  This  action  was  brought  by  the  plaintiff,  as  judg- 
ment creditor,  for  the  appointment  of  a  receiver  of  the  defendant 
corporation,  under  the  provisions  of  1878  G.  S.  ch.  76. 

A  receiver  had  previously  been  appointed  in  a  foreclosure  suit 
brought  by  one  Curtis  against  the  same  defendant. 

The  plaintiff  having  made  a  motion  in  the  present  action,  the  de- 
fendant appeared  by  attorney,  the  appearance  being  stated  to  be 
special,  and  objected  to  "  any  further  proceedings,  or  any  proceed- 
ings, in  the  action  looking  towards  the  appointment  of  a  receiver 
thereof,"  upon  the  grounds  —  First,  that  "  there  is  a  receiver  al- 
ready appointed  therein,  under  and  by  virtue  of  an  order  of  this 
court  in  an  action  already  pending  therein  ";  second,  because  the 
'plaintiff  has  never  acquired  "  jurisdiction  in  this  action  of  either 
subject-matter  or  of  the  person  of  the  defendant  corporation." 

Giving  counsel  the  benefit  of  the  assumption  that  by  "  plaintiff  " 
is  meant  "  court,"  we  still  think  that  this  amounted  to  a  general  ap- 
pearance, which  gave  the  court  jurisdiction  of  the  defendant.  The 
rjilejs  that  an  appearance  for  any  other  purpose  than  to  question 
the  jurisdiction  of  the  court  is  general. 

The  first  ground  of  objection  to  plaintiff's  application  for  the  ap- 
pointment of  a  receiver  did  not  go  to  the  jurisdiction  of  the  court, 
either  over  the  subject-matter  or  over  the  person  of  the  defendant, 
and  did  not  purport  to  be  made  as  such,  but  merely  as  a  defense  on 
B  I  the  merits  to  plaintiff's  motion,  to  wit,  that  a  receiver  had  been 
•"^     already  appointed  in  another  action.  .  .  . 

Order  reversed,  and  cause  (remi^nde^  for  further  proceedings.^ 

Vanderburgh,  J.,  absent,  took  no  part. 

1  The  statement  of  facts  is  omitted,  together  with  a  part  of  the  opinion 
in  which  it  was  held  that  the  fact  that  a  receiver  had  akeady  been  appointed 
in  the  foreclosure  suit  constituted  no  reason  why  a  receiver  should  not  be 
appointed  in  the  present  suit.  —  Ed. 

^  As  to  what  constitutes  a  general  appearance,  see  Boyle  v.  Sacker,  39 

57 


58  APPEARANCE 

In  Davis  v.  Cleveland,  Cincinnati,  Chicago  &  St.  Louis 
Railway  Company,  217  United  States  157,  174,  the  court  (Mc- 
Kenna,  J.)  said:  — 

The  next  contention  of  plaintiff  is  that  the  appearance  of  the 
C.  C.  C.  &  St.  L.  Ry.  Co.  was  a  general  appearance  and  submitted 
its  person  to  the  jurisdiction  of  the  court.  In  other  words,  it  is 
contended  that  the  person  over  whom  personal  jurisdiction  has  not 
been  obtained  cannot  appear  specially  to  set  aside  the  attachment 
of  his  property,  which  we  must  assume  in  order  to  completely  ex- 
hibit the  contention,  is  valid.  We  cannot  concur  in  the  conten- 
tion. It  is  supported,  it  is  true,  by  some  cases,  but  it  is  opposed  by 
more.  Drake  on  Attachments,  §112,  and  cases  cited.  The 
stronger  reasoning  we  think  too  is  against  the  contention.  A  court 
without  personal  service  can  acquire  no  jurisdiction  over  the  per- 
son, and  when  it  attempts  to  assert  jurisdiction  over  property  it 
should  be  open  to  the  defendant  to  specially  appear  to  contest  its 
control  over  such  property;  in  other  words  to  contest  the  ground 
of  its  jurisdiction.  Harkness  v.  Hyde,  98  U.  S.  476;  Railway  Co. 
V.  Denton,  146  U.  S.  206;  Goldey  v.  Morning  News,  156  U.  S.  518, 
523;  Railway  Co.  v.  Brow,  164  U.  S.  271,  278. 

The  appearance  of  the  C.  C.  C.  &  St.  L.  Ry.  Co.  was  not  to  ob- 
ject to  the  subject-matter  of  the  action,  as  it  is  contended  by  plain- 
tiff. The  subject-matter  of  the  action  is  a  demand  for  damages, 
which  can  only  be  prosecuted  to  efficient  judgment  and  be  satisfied 
out  of  the  property  attached.  Clark  v.  Wells,  203  U.  S.  164.  The 
jurisdiction  of  the  court,  therefore,  depended  upon  the  attachment, 
and  the  appearance  to  set  that  aside  was  an  appearance  to  object 
to  the  jurisdiction.  In  other  words,  the  defendant  was  only  in 
court  through  its  property,  and  it  appeared  specially  to  show  that 
it  was  improperly  in  court. 

Ch.  Div.  249;  Wabash  Western  Railway  v.  Brow,  164  U.  S.  271,  41  L.  ed.  431, 
17  S.  Ct.  126;  Western  Loan  Co.  v.  Butte  &  Boston  Mining  Co.,  210  U.  S. 
368,  52  L.  ed.  1101,  28  S.  Ct.  720;  Wood  v.  Wilbert,  226  U.  S.  384,  57  L.  ed. 
264,  33  S.  Ct.  125;  Bankers  Life  Ins.  Co.  v.  Robbins,  59  Neb.  170,  80  N.  W. 
484;  Templin  v.  Kimsey,  74  Neb.  614,  105  N.  W.  89;  Dickinson  v.  Farwell, 
71  N.  H.  213,  51  Atl.  624;  Reed  v.  Chilson,  142  N.  Y.  152,  36  N.  E.  884;  Mer- 
kee  V.  City  of  Rochester,  13  Hun  (N.Y.),  157;  Alderson  v.  White,  32  Wis.  308; 
Bestor  i;.  Inter-County  Fair,  135  Wis.  339,  115  N.  W.  809.  See  also  3  Cyc. 
503;  2  Encyc.  of  Pi.  &  Pr.  632. 

Jurisdiction  may  be  conferred  by  a  voluntary  appearance  although  both 
parties  are  non-residents.  P'airfax,  etc.,  Co.  v.  Chambers,  75  Md.  604,  23 
Atl.  1024;  Cofrode  v.  Circuit  Judge,  79  Mich.  332,  44  N.  W.  623,  7  L.  R.  A. 
511.  — Ed. 


CORBETT   V.    physicians'    CASUALTY   ASSOCIATION  59 

I.   CORBETT   V.  PHYSICIANS'   CASUALTY  ASSOCIATION 

OF  AMERICA. 

Supreme  Court  of  Wisconsin.     1908. 
[Reported  135  Wisconsin,  505.] 

Appeal  from  a  judgment  of  the  circuit  court  for  Sheboygan 
county:  JNIichael  Kirwan,  Circuit  Judge.     Affirmed. 

Action  to  recover  on  an  accident  insurance  policy  issued  on  the 
mutual  assessment  plan. 

The  contract  secured  to  plaintiff,  as  beneficiary,  the  sum  of 
$3,000  in  case  of  the  death  by  accidental  means  of  George  W.  Cor- 
bett,  her  husband.  The  complaint  contained  all  allegations  essen- 
tial to  a  recovery.  The  answer  stated  three  defenses,  as  follows, 
in  effect:  (1)  The  defendant  is  a  Nebraska  corporation  which  has 
never  complied  with  the  laws  of  this  state  authorizing  service  of 
process  upon  it  by  serving  upon  the  commissioner  of  insurance  and 
the  only  service  made  was  of  that  character;  (2)  without  waiving 
the  plea  to  the  jurisdiction  of  the  court  the  defendant  shows  that 
it  never  qualified  to  do  business  in  this  state  and,  therefore,  the 
making  of  the  insurance  contract  was  prohibited  by  sec.  1978, 
Stats.  (1898),  and  is  not  enforceable  in  the  courts  of  this  state;  (3) 
without  waiving  any  right  under  the  foregoing  the  allegations  of 
the  complaint  as  to  the  assured  being  a  member  in  good  standing 
of  the  association  at  the  time  he  was  injured  are  denied,  and  it  is 
alleged  that  he  was  not  such  member  by  reason  of  his  having  failed 
to  pay  the  last  assessment  upon  his  policy,  which  was  due  five  days 
before  his  death,  prior  to  the  date  of  his  injury.  .  ,  . 

The  plea  to  the  jurisdiction  was  tried  first  and  overruled.  De- 
fendant by  its  counsel  excepted  to  the  ruling.  No  specific  objec- 
tion was  made  to  then  proceeding  to  a  trial  upon  the  merits,  which 
was  done.  Before  the  hearing  commenced  there  was  a  stipulation 
that  the  jurisdictional  matter  should  first  be  disposed  of,  and  then, 
if  the  decision  should  be  adverse  to  the  defendant,  the  trial  should 
proceed  on  the  merits.  .  .  . 

Judgment  was  rendered  in  favor  of  plaintiff,  from  which  this 
appeal  was  taken.  .  .  . 

Marshall,  J.^  At  the  threshold  in  the  consideration  of  this 
case  is  presented  the  question  of  whether  a  defendant  can  challenge 
the  jurisdiction  of  the  court  in  which  he  is  cited  to  apj^ear,  upon 

^  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted. — 
Ed. 


60  APPEARANCE 

the  ground  that  the  summons  in  the  action  was  not  efficiently 
served,  and  faiUng  in  that  can  submit  to  a  trial  upon  the  merits 
and  in  case  of  an  adverse  decision  can,  on  appeal,  have  the  benefit 
of  the  objection  made  at  the  start.  Counsel  for  appellant  refer  to 
our  statute  and  that  of  the  state  of  Nebraska  and  decisions  in  re- 
spect to  the  latter  and  draw  the  conclusion  therefrom  that  such  a 
course  is  proper. 

As  we  view  the  case  we  need  not  follow  and  endeavor  to  answer 
counsel's  argument  in  detail  on  the  jurisdictional  question,  because 
it  is  firmly  settled  in  respondent's  favor  by  numerous  decisions  of 
this  court.  Lowe  v.  Stringham,  14  Wis.  222;  Grantier  v.  Rose- 
crance,  27  Wis.  488;  Blackwood  v.  Jones,  27  Wis.  498;  Anderson 
V.  Coburn,  27  Wis.  558;  Ins.  Co.  of  N.  A.  v.  Swineford,  28  Wis.  257; 
Alderson  v.  White,  32  Wis.  308;  Dikeman  v.  Struck,  76  Wis.  332, 
45  N.  W.  118.  The  following  language  by  Dixon,  C.  J.,  in  Aider- 
son  V.  White,  supra,  referred  to  by  counsel  for  respondent,  is  often 
quoted  as  an  unmistakable  indication  of  the  doctrine  prevailing  in 
this  state: 

"  The  party  seeking  to  take  advantage  of  want  of  jurisdiction  in  every 
such  case,  must  object  on  that  ground  alone,  and  keep  out  of  court  for 
every  other  purpose.  If  he  goes  in  for  any  purpose  incompatible  with  the 
supposition  that  the  court  has  no  power  or  jurisdiction  on  account  of 
defective  service  of  process  upon  him,  he  goes  in  and  submits  for  all  the 
purposes  of  personal  jurisdiction  \\ith  respect  to  himself,  and  cannot  after- 
wards be  heard  to  make  the  objection.  It  is  a  general  appearance  on  his 
part,  equivalent  in  its  effect  to  proof  of  due  personal  service  of  process." 

It  will  be  thus  seen  that  the  right  to  proceed  to  a  trial  on  the 
merits  after  a  decision  against  the  defendant  on  the  jurisdictional 
question,  efficiently  saving  an  objection  to  the  ruling  in  that  regard, 
is  not  recognized  as  having  any  place  in  our  practice.  The  quoted 
language  was  only  a  reiteration,  in  effect,  of  what  was  said  in  Lowe 
V.  Stringham,  supra.  There  the  doctrine  which  has  from  the  start 
prevailed  here,  was  thus  plainly  stated  in  these  words: 

"  We  think  it  is  also  a  waiver  of  such  a  defect  for  the  party,  after  making 
his  objection,  to  j)l(\'vd  and  go  to  trial  on  the  merits.  To  allow  him  to  do 
this,  would  be  to  gi\e  him  tliis  advantage.  After  objecting  that  he  was 
not  properly  in  court,  he  could  go  in,  take  his  chance  of  a  trial  on  the  merits, 
and  if  it  resulted  in  his  favor,  insist  upon  the  judgment  as  good  for  his 
benefit,  but  if  it  resulted  against  him,  he  could  set  it  all  aside  upon  the 
ground  that  he  had  never  been  properly  got  into  court  at  all.  If  a  party 
wishes  to  insist  upon  the  objection  tliat  he  is  not  in  court,  he  must  keep 
out  for  all  purposes  except  to  make  that  objection." 


CORBETT   V.    physicians'    CASUALTY   ASSOCIATION  Gl 

We  recognize  that  there  are  very  respectable  authorities  to  the 
contrary  of  the  foregoing,  among  which  are  the  following:  Hark- 
ness  V.  Hyde,  98  U.  S.  476;  Miner  v.  Francis,  3  N.  Dak.  549,  58 
N.  W.  343,  2  Ency.  PI.  &  Pr.  629,  630,  and  note  1.  However,  it  is 
believed  that  the  great  weight  of  authority,  or  at  least  the  better 
reasoning,  is  the  other  wa}^  These  are  but  a  few  of  the  many  cases 
that  might  be  cited  in  support  of  that:  In  re  Clarke,  125  Cal.  388, 

392,  58  Pac.  22;  Manhard  v.  Schott,  37  Mich.  234;  Stevens  v. 
Harris,  99  Mich.  230,  58  N.  W.  230;  Union  Pac.  R.  Co.  v.  De  Busk, 
12  Colo.  294,  20  Pac.  752;  Lord  v.  Hendrie  &  B.  Mfg.  Co.,  13  Colo. 

393,  22  Pac.  782;  Ruby  Chief  M.  &  M.  Co.  v.  Gurley,  17  Colo.  199, 
29  Pac.  668;  Stephens  v.  Bradley,  24  Fla.  201,  3  South.  415;  Thayer 
V.  Dove,  8  Blackf.  567;  Kronski  v.  Mo.  Pac.  R.  Co.,  77  Mo. 
362.  .  .  . 

By  the  Court.  — •  The  judgment  is  affirmed.  A  motion  for  a  re- 
hearing was  denied  May  8,  1908.^ 

^  For  conflicting  decisions  on  the  question  involved  in  the  principal  case  see 
3  Cyc.  525;  2  Encyc.  of  PI.  &  Pr.  629;   16  L:  R.  A.  (n.  s.),  177. 

In  Harkness  v.  Hyde,  98  U.  S.  476,  25  L.  ed.  237,  the  court  said  (p.  479): 
"  The  right  of  the  defendant  to  insist  upon  the  objection  to  the  illegahty  of 
the  service  was  not  waived  by  the  special  appearance  of  counsel  for  him  to 
move  the  dismissal  of  the  action  on  that  gromid,  or  w'hat  we  consider  as  in- 
tended, that  the  service  be  set  aside;  nor,  when  that  motion  was. overruled, 
by  their  answering  for  him  to  the  merits  of  the  action.  Illegahty  in  a  pro- 
ceeding by  which  jurisdiction  is  to  be  obtained  is  in  no  case  waived  by  the 
appearance  of  the  defendant  for  the  purpose  of  caUing  the  attention  of  the 
court  to  such  irregularity;  nor  is  the  objection  waived  when  being  urged  it 
is  overruled,  and  the  defendant  is  thereby  compelled  to  answer.  He  is  not 
to  be  considered  as  abandoning  his  objection  because  he  does  not  submit  to 
further  proceedings  without  contestation.  It  is  only  where  he  pleads  to  the 
merits  in  the  first  instance,  without  insisting  ujjon  the  illegahty,  that  the 
objection  is  deemed  to  be  waived." 

If  the  defendant  is  arrested  and  he  enters  a  special  appearance  and 
unsuccessfully  denies  the  jurisdiction  of  the  court  over  his  person,  and  after- 
wards pleads  to  the  merits,  he  does  not  thereby  waive  the  question  of  juris- 
diction.    Warren  v.  Crane,  50  Mich.  300,  15  N.  W.  465. 

If  the  defendant  enters  a  special  appearance  and  unsuccessfully  denies  the 
jurisdiction  of  the  court  over  his  person,  and  afterwards  files  a  cross-complaint 
demanding  affirmative  rehef,  he  thereby  waives  the  question  of  jurisdiction. 
Chandler  v.  Citizens  National  Bank,  149  Ind.  601,  49  N.  E.  579;  Linton  v. 
Heye,  69  Neb.  450,  95  N.  W.  1040,  111  Am.  St.  Rep.  556;  Austin  Manufactur- 
ing Co.  V.  Hunter,  16  Okl.  86,  86  Pac.  293.  —  Ed. 


..-.^ 


62  APPEARANCE 

GODFREY  V.  VALENTINE. 

Supreme  Court  of  Minnesota.     1888. 

[Reported  39  Minnesota,  336.] 

Appeal  by  defendant  from  an  order  of  the  district  court  for  Ram- 
sey county,  Brill,  J.,  presiding,  denying  his  motion  to  set  aside  a 
judgment,  (among  other  grounds  for  want  of  jurisdiction),  and  for 
leave  to  answer. 

Dickinson,  J.  This  is  an  j^ppeal  by  the  defendant  from  an  order 
denying  a  motion  to  set  aside  a  judgment  entered  against  him  in  the 
district  court,  in  August,  1883,  the  defendant  never  having  ap- 
peared in  the  action.  The  motion  raised  the  question  of  the  juris^  . 
diction  of  the  court.  After  proper  proof  of  the  non-residence  of 
the  defendant,  and  of  want  of  knowledge  as  to  his  place  of  residence, 
the  summons  was  published  in  the  St.  Paul  Daily  Globe,  and,  upon 
proof  by  affidavit  of  such  publication,  and  of  the  defendant's  de- 
fault, the  cause  was  brought  to  hearing  and  judgment.  The 
asserted  jurisdictional  defect  is  that  the  summons  was  not  published 
"  once  in  each  week  "  for  six  consecutive  weeks,  as  prescribed  by 
the  statute.  The  affidavit  of  publication,  embraced  in  the  judg- 
ment-roll, states  that  the  summons  was  published  in  the  St.  Paul 
Daily  Globe  "  for  the  period  of  six  successive  weeks,  commencing 
on  the  23d  day  of  June,  1883,  on  which  day  last  mentioned  it  was 
first  published,  and  ending  on  the  4th  day  of  August,  1883,  on 
which  day  last  mentioned  it  was  last  published.  .  .  ."  This 
affidavit  is  referred  to  in  the  judgment  itself  as  the  proof  of  service 
upon  which  the  court  entertained  jurisdiction.  The  statute  pro- 
vides that  proof  of  service  by  publication  shall  be  made  by  affi- 
davit, (Gen.  St.  1878,  c.  66,  §  68),  and  (in  case  the  judgment  is 
upon  default  to  answer)  that  proof  of  the  service  of  the  summons 
be  incorporated  in  the  judgment-roll.  Id.  §  275.  It  will  not  be 
presumed  that  there  was  other  proof  of  service  than  that  thus 
shown  in  the  record,  nor,  in  an  action  against  a  non-resident  who 
is  shown  to  have  been  personally  beyond  the  jurisdiction  of  the 
court,  will  it  be  presumed,  the  question  being  directly  presented, 
that  the  court  acquired  jurisdiction  by  substituted  service,  unless 
that  is  affirmatively  shown.  Barber  v.  Morris,  37  Minn.  194,  (33 
N.  W.  Rep.  559) ;  Brown  v.  St.  Paul  &  N.  P.  Ry.  Co.,  38  Minn.  506, 
(38  N.  W.  Rep.  698);  Morey  v.  Morey,  27  Minn.  265,  (6  N.  W. 
Rep.  783);  Galpin  v.  Page,  18  Wall.  350. 

Following  the  decisions  in  UUman  v.  Lion,  8  Minn.  338,  (381),  and 
Golcher  v.  Brisbin,  20  Minn.  407,  (453),  we  must  hold  this  affidavit 


GODFREY    V.    VALENTINE  63 

of  publication  insufficient  to  show  a  publication  "  once  in  each 
week  "  for  the  prescribed  period.  This  conclusion  is  also  sustained 
by  Hernandez  v.  Creditors,  57  Cal.  3o33. 

The  respondent  relies  in  support  of  the  judgment  upon  the  rule 
declared  in  Curtis  v.  Jackson,  23  Minn.  268,  to  the  effect  that  the 
appearance  by  a  party,  unless  limited  to  mere  jurisdictional  ques- 
tions, cures  a  want  of  jurisdiction  as  to  a  judgment  previously 
rendered.  The  propriety  of  that  rule  with  respect  to  an  appear- 
ance after  judgment,  and  for  the  purpose  of  securing  relief  from 
the  judgment,  was  doubted  in  Kanne  v.  Minn.  &  St.  Louis  Ry.  Co., 
33  Minn.  419,  421,  (23  N.  W.  Rep.  854).  The  doctrine  of  Curtis  v. 
Jackson,  to  the  full  extent  expressed  in  that  decision,  cannot,  we 
are  satisfied,  be  sustained  upon  principle.  Upon  an  application  to 
set  aside  a  judgment  shown  to  have  been  absolutely  void  because 
the  court  had  acquired  no  jurisdiction  in  the  cause,  an  objection 
distinctly  made  upon  that  ground  should  not  be  deemed  to  have 
been  at  the  same  time  waived  from  the  fact  that  the  moving  party 
also  urges  in  support  of  his  application  additional  reasons  not  in- 
consistent with  the  alleged  want  of  jurisdiction,  nor  because,  by 
asking  to  be  allowed  to  file  an  answer  as  in  a  pending  cause,  he 
indicates  his  present  willingness  to  submit  himself  to  the  jurisdic- 
tion of  the  court,  in  order  that,  after  a  hearing  upon  the  issues  thus 
presented,  the  court  may  proceed  to  judgment.  The  course  of  the 
moving  party  in  thus  seeking  to  have  a  void  judgment  set  aside,  — 
to  which  relief  he  is  entitled  as  a  matter  of  right,  —  but  at  the  same 
time  consenting  and  asking  that  the  court  shall  now  hear  and 
Sdj udicatejupon  the  cause,  may  justify  the  court  in  entertaining 
the  cause  and  proceeding  as  in  an  action  pending  in  which  the  de- 
fendant has  voluntarily  appeared.  But  in  thus  urging  his  legal 
right,  and  thus  invoking  and  consenting  to  the  future  action  of  the 
court,  the  moving  party  should  not  be  deemed  to  have  conferred 
jurisdiction  retrospective^,  so  as  to  render  valid  the  previous  judg- 
ment, which,  being  unsupported  by  any  authorized  judicial  pro- 
ceedings, was  not  merely  voidable,  but  void,  and  in  legal  effect  a 
nullity.  Gray  v.  Hawes,  8  Cal.  562;  Shaw  v.  Rowland,  32  Kan. 
154,  (4  Pac.  Rep.  146);  Boals  v.  Shules,  29  Iowa,  507;  Briggs  v. 
Sneghan,  45  Ind.  14;  State  v.  Cohen,  13  S.  C.  198;  Moore  v.  Wat- 
kins,  1  Ark.  268.  Order  reversed.^ 

1  See  Simensen  v.  Simensen,  13  N.  D.  305,  100  N.  W.  708.  But  see  Mars- 
den  V.  Soper,  11  Oh.  St.  503;  Henry  v.  Henry,  15  S.  D.  80,  87  N.  W.  522. 

Intervening  rights  of  third  persons  at  any  rate  will  no^  be  cut  off.  Ander- 
son V.  Coburn,  27  Wis.  558.  —  Ed. 


64  APPEARANCE 

YORK  V.   TEXAS. 
Supreme  Court  of  the  United  States.     1890. 
[Reported  137  United  States,  15.] 

On  the  14th  day  of  November,  1888,  a  personal  judgment  was 
rendered  in  the  District  Court  of  Travis  County,  Texas,  against  the 
plaintiff  in  error,  which  judgment  was  subsequently  affirmed  by 
the  Supreme  Court  of  the  State.  Error  is  now  alleged  in  this,  that 
the  District  Court  had  no  jurisdiction  of  the  person  of  the  defend- 
ant. The  record  discloses  that  on  October  20,  1885,  the  defendant 
leased  from  the  State  certain  school  lands,  at  a  stipulated  rental. 
The  lease  provided  that  in  all  suits  thereunder  the  venue  should  be 
laid  in  Travis  County,  Texas.  The  State  filed  its  petition  on 
February  15,  1888,  alleging  non-payment  of  the  rent  due  in  1886 
and  1887.  The  defendant  being  a  non-resident,  a  citizen  of  St. 
Louis,  Missouri,  a  notice  in  accordance  with  the  provisions  of  the 
statute  was  served  upon  him  personally  in  that  city.  No  question 
is  made  but  that  the  service  was  in  strict  conformity  with  the  letter 
of  the  statute.  On  March  9,  1888,  the  defendant  appeared  by  his 
counsel  and  filed  a  special  plea,  challenging  the  jurisdiction  of  the 
court,  on  the  ground  that  he  was  a  non-resident  and  had  not  been 
served  personally  with  process  within  the  limits  of  the  State.  This 
plea  was  overruled.  Thereafter,  and  on  the  5th  day  of  October, 
1888,  the  defendant  appeared  by  his  attorneys  in  open  court,  de- 
manded a  jury,  paid  the  jury  fee,  and  had  the  cause  transferred  to 
the  jury  docket.  On  the  6th  day  of  October  he  again  filed  a  plea 
to  the  jurisdiction,  on  the  same  ground,  which  was  also  overruled. 
On  the  14th  day  of  November,  when  the  cause  was  reached  and 
called  for  trial,  he  again  appeared  by  his  attorneys,  waived  his  right 
of  trial  by  a  jury  and  his  demand  of  a  jury,  and  declined  to  further 
answer  to  the  cause  —  relying  solely  upon  his  plea  to  the  jurisdic- 
tion. The  court  thereupon  proceeded  to  render  judgment  against 
him,  which,  as  heretofore  stated,  was  affirmed  by  the  Supreme 
Court.     73  Texas,  651. 

Brewer,  J.  It  was  conceded  by  the  District  and  the  Supreme 
Courts  that  the  service  upon  the  defendant  in  St.  Louis  was  a  nul- 
lity, and  gave  the  District  Court  no  jurisdiction;  but  it  was  held 
that,  under  the  peculiar  statutes  of  the  State  of  Texas,  the  appear- 
ance for  the  purpose  of  pleading  to  the  jurisdiction  was  a  voluntary 
appearance,  which  brought  the  defendant  into  court.  Plaintiff  in 
error  questions  this  construction  of  the  Texas  statutes;  but,  inas- 


YORK   V.    TEXAS  65 

much  as  the  Supreme  Court,  the  highest  court  of  the  State,  has  so 
construed  them,  such  construction  must  be  accepted  here  as  cor- 
rect, and  the  only  question  we  can  consider  is,  as  to  the  power  of 
the  State  in  respect  thereto. 

It  must  be  conceded  that  such  statutes  contravene  the  estab- 
Ushed  rule  elsewhere  —  a  rule  which  also  obtained  in  Texas  at  an 
earlier  day,  to  wit,  that  an  appearance  which,  as  expressed,  is 
solely  to  challenge  the  jurisdiction,  is  not  a  general  appearance  in 
the  cause,  and  does  not  waive  the  illegality  of  the  service  or  submit 
the  party  to  the  jurisdiction  of  the  court.  Harkness  v.  Hyde,  98 
U.  S.  476;  Raquet  v.  Nixon,  Dallam  (Texas),  386;  De  Witt  v. 
Monroe,  20  Texas,  289;  Hagood  v.  Dial,  43  Texas,  625;  Robinson 
V.  Schmidt,  48  Texas,  19. 

The  difference  between  the  present  rule  in  Texas  and  elsewhere 
is  simply  this:  Elsewhere  the  defendant  may  obtain  the  judgment 
of  the  court  upon  the  sufficiency  of  the  service,  without  submitting 
himself  to  its  jurisdiction.  In  Texas,  by  its  statute,  if  he  asks  the 
court  to  determine  any  question,  even  that  of  service,  he  submits 
himself  wholly  to  its  jurisdiction.  Elsewhere,  he  gets  an  opinion 
of  the  court  before  deciding  on  his  own  action.  In  Texas,  he  takes 
all  the  risk  himself.  If  the  service  be  in  fact  insufficient,  all  sub- 
sequent proceedings,  including  the  formal  entry  of  judgment,  are 
void;  if  sufficient,  they  are  valid.  And  the  questjcjn  is,  whether 
under  the  Constitution  of  the  United  States  the  defendant  has  an 
inviolable  right  to  have  this  question  of  the  sufficiency  of  the  ser- 
vice decided  in  the  first  instance  and  alone. 

The  Fourteenth  Amendment  is  relied  upon  as  invalidating  such 
legislation.  That  forbids  a  State  to  "  deprive  any  person  of  life, 
hberty  or  property,  without  due  process  of  law."  And  the  propo- 
sition is,  that  the  denial  of  a  right  to  be  heard  before  judgment 
simply  as  to  the  sufficiency  of  the  service  operates  to  deprive  the 
defendant  of  hberty  or  property.  But  the  mere  entry  of  a  judg- 
ment for  money,  which  is  void  for  want  of  proper  service,  touches 
neither.  It  is  only  when  process  is  issued  thereon  or  the  judgment 
is  sought  to  be  enforced  that  liberty  or  property  is  in  present  dan- 
ger. If  at  that  time  of  immediate  attack  protection  is  afforded, 
the  substantial  guarantee  of  the  amendment  is  preserved,  and  there 
is  no  just  cause  of  complaint.  The  State  has  full  power  over  reme- 
dies and  procedure  in  its  own  courts,  and  can  make  any  order  it 
pleases  in  respect  thereto,  provided  that  substance  of  right  is 
secured  without  unreasonable  burden  to  parties  and  litigants. 
Antoni  v.  Greenhow,  107  U.  S.  769.     It  certainl}^  is  more  conven- 


66  APPEARANCE 

ient  that  a  defendant  be  permitted  to  object  to  the  service,  and 
raise  the  question  of  jurisdiction,  in  the  first  instance,  in  the  court 
in  which  suit  is  pending.  But  mere  convenience  is  not  substance 
of  right.  If  the  defendant  had  taken  no  notice  of  this  suit,  and 
judgment  had  been  formally  entered  upon  such  insufficient  service, 
and  under  process  thereon  his  property,  real  or  personal,  had  been 
seized  or  threatened  with  seizure,  he  could  by  original  action  have 
enjoined  the  process  and  protected  the  possession  of  his  property. 
If  the  judgment  had  been  pleaded  as  defensive  to  any  action 
brought  by  him,  he  would  have  been  free  to  deny  its  validity. 
There  is  nothing  in  the  opinion  of  the  Supreme  Court  or  in  any  of 
the  statutes  of  the  State,  of  which  we  have  been  advised,  gainsay- 
ing this  right.  Can  it  be  held,  therefore,  that  legislation  simply 
forbidding  the  defendant  to  come  into  court  and  challenge  the 
validity  of  service  upon  him  in  a  personal  action,  without  surren- 
dering himself  to  the  jurisdiction  of  the  court,  but  which  does  not 
attempt  to  restrain  him  from  fully  protecting  his  person,  his  prop- 
erty and  his  rights  against  any  attempt  to  enforce  a  judgment 
rendered  without  due  service  of  process,  and  therefore  void,  de- 
prives him  of  liberty  or  property,  within  the  prohibition  of  the 
Fourteenth  Amendment  ?     We  think  not. 

The  judgment  is  affirmed.^ 
Mr.  Justice  Bradley  and  Mv.  Justice  Gray  dissented. 

CREIGHTON   v.   KERR  et  at. 

Supreme  Court  of  Colorado  Territory.     1872. 

[Reported  1  Colorado,  509.] 

Suit  commenced  by  attachment  to  the  June  term,  1870;  amount 
specified  in  the  affidavit  $5,563.50.  Cause  of  action  in  the  affidavit, 
for  telegraph  poles  and  labor  and  material  furnished  by  the  plain- 
tiffs to  defendant.  The  declaration  contained  the  common  counts 
for  work  and  labor,  for  telegraph  poles,  goods,  wares  and  mer- 
chandise, for  money  paid,  laid  out  and  expended,  and  a  count  upon 
an  account  stated;  the  damages  were  laid  at  $8,000. 

1  The  statute  which  was  upheld  in  the  principal  case  docs  not  apply  to 
actions  brought  in  the  federal  courts  in  Texas.  Southern  Pacific  Company 
V.  Denton,  146  U.  S.  202,  36  L.  ed.  942,  13  S.  Ct.  44.  Compare  Louden 
Machinery  Co.  v.  American  Malleable  Iron  Co.,  127  Fed.  1008.  —  Ed. 


OvaaaVAJsO^  JLa>X>>>a    UU^k/m^  -h^   A^rJJr 


CREIGHTON    V.    KERR  67 

At  the  October  term,  1870,  the  defendant  appeared  by  Charles 
&  Elbert,  his  attorneys,  and  submitted  to  a  rule  to  plead  within 
ten  daj^s.  Afterward,  and  before  the  expiration  of  the  ten  days, 
an  order  was  entered  of  record  in  the  cause,  as  follows: 

"  Now  on  this  day  came  Messrs.  Charles  &  Elbert,  and  with- 
drew their  appearance  as  attorne3's  for  the  said  defendant,  with- 
out prejudice  to  the  plaintiffs." 

Afterward,  and  at  the  same  term,  the  plaintiffs  obtained  judg- 
ment against  the  defendant  for  $8,000  and  costs. 

Wells,  J.  It  appears  to  us  that  the  withdrawal  of  the  appear- 
ance which  was  entered  on  the  part  of  the  plaintiff  in  error  in  the 
court  below,  whether  it  be  regarded  as  the  act  of  the  attorneys 
merely  or  as  the  act  of  the  defendant  himself,  left  the  plaintiffs 
below  in  precisely  the  same  position  as  if  it  had  not  been  withdrawn 
or  in  any  manner  qualified.  If  we  are  to  give  any  effect  to  the 
words  of  the  record  of  this  proceeding,  they  impart  a  stipulation 
by  the  defendant,  or  at  least  a  condition  imposed  by  the  court, 
that  the  plaintiffs  shall  not  lose  any  advantage  which,  by  reason 
of  the  appearance,  they  had  gained.  The  appearance,  to  all 
intents  and  purposes,  still  stood  as  a  waiver  of  process,  and  suf- 
ficiently supported  the  judgment  nil  dicit,  which  was  afterward 
given. 

And  this,  we  think,  also  disposes  of  the  second  question  which  is 
presented  by  counsel,  for,  if  we  consider  the  appearance  which  was 
interposed  on  behalf  of  the  defendant,  as  still  so  far  subsisting  as  to 
waive  the  necessity  of  process;  if  the  plaintiffs,  notwithstanding 
the  withdrawal  of  the  defendant's  attorneys,  still  maintained  their 
advantage  in  this  respect,  it  follows  that  there  was  still  an  appear- 
ance subsisting  on  behalf  of  defendant  for  all  purposes  where  such 
appearance  could  afford  the  plaintiff  any  advantage. 

Therefore,  the  attachment  which,  in  the  first  instance,  was  but 
a  proceeding  in  rem,  and  which,  by  the  defendant's  appearance, 
had  assumed  the  character  of  an  action  in  yersonam,  still  remained 
of  the  same  character  after  the  appearance  was  withdraA\Ti,  and 
the  plaintiffs  were  still  entitled  to  have  judgment  for  whatever 
damages  they  might  establish  under  their  declaration  within  the 
limit  of  the  ad  damnum  laid  therein,  whether  the  causes  of  action 
counted  upon  were  the  same  as  those  mentioned  in  the  affidavit  or 
different.  The  position  of  the  plaintiffs  was  the  same  as  if  the 
defendant  had  plead  to  the  action  and  the  issue  had  been  tried  by 
a  jury;  and,  in  such  cases,  it  has  uniformly,  we  believe,  been  held 


68  APPEARANCE 

that  the  plaintiff's  recovery  is  not  hmited  to  the  amount  or  causes 
of  action  specified  in  the  affidavit. 

We  see  no  error  in  the  record.     The  judgment  of  the  court  below 
is,  therefore,  affirmed.  Affirmed} 


McMINN   V.   HAMILTON,  Administrator.    - 
Supreme  Court  of  North  Carolina.     1877. 
[Reported  77  North  Carolina,  300.] 

Appeal  from  an  Order  dismissing  the  Action,  made  at  Spring 
Term,  1877,  of  Transylvania  Superior  Court,  by  Henry,  J. 

From  the  case  agreed  and  the  record,  the  following  facts  appear  : 
The  plaintiff  brought  an  action  against  the  defendant  in  his  repre- 
sentative character  for  $70.35  before  a  Justice  of  the  Peace  in  said 
County  where  both  parties  reside.  The  defendant  obtained  letters 
of  administration  and  filed  his  official  bond  in  Henderson  County. 
The  defendant  appeared  before  the  Justice  and  pleaded  payment 
and  statute  of  limitations.  Evidence  was  heard  and  judgment 
was  renclered  for  the  plaintiff,  from  which  the  defendant  appealed. 
In  the  Superior  Court  he  filed  a  demurrer,  not  to  the  jurisdiction, 
but  on  other  grounds;  and  made  a  motion  at  the  same  term  to  dis- 
miss the  action  for  want  of  jurisdiction.  The  plaintiff  declined  to 
remove  the  case  by  consent  and  His  Honor  dismissed  the  action. 
From  which  order  the  plaintiff  appealed. 

Faircloth,  J.  (After  stating  the  facts  as  above.)  Where  a 
Court  has  no  jurisdiction  of  the  subject  matter,  the  objection  can 
be  taken  at  any  time,  and  indeed  as  soon  as  this  fact  is  discovered 
the  Court  mero  motu  will  take  notice  of  it  and  dismiss  the  action. 
But  if  it  has  jurisdiction  of  the  subject  matter  and  the  venue  is 
wrong,  the  objection  must  be  taken  in  apt  time;  and  if  the  defend- 
ant pleads  to  the  merits  of  the  action,  he  will  be  taken  to  have 
waived  the  objection.     He  cannot  have  two  chances. 

Applying  this  principle  to  the  case  before  us,  we  think  the 
defendant  waived  the  objection  by  pleading  before  the  Justice 
and  that  it  was  then  too  late  to  raise  it. 

Error. 

Per  Curiam.  Judgment  reversed? 

1  See  The  Duplcix,  [1912]  P.  8;  Fitzgerald  Const.  Co.  v.  Fitzgerald,  137  U.  S. 
98,  34  L.  ed.  GOS,  11  8.  Ct  36;  Oliver  v.  Kinney,  173  Ala.  593,  .50  80.  203; 
Conn  V.  Caldwell,  6  III.  .531.  —  En. 

2  In  the  following  cases,  the  objection  that  the  action  was  brought  in  the 


\J^,h.  ^JAJAj^^J^^'^  W  uvwidLu^v  ls^)^y^  t-X^^  n  m\. 


CONSTRUCTION   AND   IMPROVEMENT   CO.    V.    GIBNEY  69 

INTERIOR  CONSTRUCTION  AND   IMPROVEMENT 
COMPANY  V.   GIBNEY. 

Supreme  Court  of  the  United  States.     1895. 
[Reported  160  United  States,  217.] 

This  was  an  action  at  law,  brought  June  9,  1890,  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Indiana^  by  the  In- 
terior Construction  and  Improvement  Company  against  John  C. 
Gibney  and  Harvey  Bartley,  copartners  under  the  name  of  J.  C. 
Gibney  and  Company,  and  James  B.  McElwaine  and  James  B. 
Wheeler,  upon  a  bond,  by  which  "  J.  C.  Gibney  &  Co.,  as  principals, 
and  J.  B.  McElwaine  and  J.  B.  Wheeler,  as  sureties,  are  holden  and 
firmly  bound,"  jointly  and  severally,  to  the  plaintiff,  in  the  sum  of 
$20,000,  for  the  performance  of  a  contract  made  by  "  said  J.  C. 
Gibney  &  Co."  with  the  plaintiff. 

The  complaint  alleged  that  the  plaintiff  was  incorporated  under 
the  laws  of  the  StateofJDiew- Jersey,  and  was  a  citizen  thereof;  and 
that  all  the  defendants  were  citizens  and  residents  of  the  State  of 
Indiana.  ~ 

On  June  19,  1890,  the  defendants  Gibney,  McElwaine  and 
Wheeler,  by  their  attorney,  entered  a  general  appearance.  But 
Gibney  never  pleaded  or  answered;  and  the  defendant  Bartley 
never  appeared,  or  made  any  defence. 

On  September  19,  1891,  McElwaine  and  Wheeler  pleaded  in 
abatement  that  at  the  time  of  the  bringing  of  this  action,  and  ever 
since,  Gibney  and  Bartley  were  citizens  of  the  State  of  Pennsyl- 
vania, and  not  citizens  or  residents  of  the  State  of  Indiana;  and 
that,  therefore,  the  court  had  no  jurisdiction  of  the  case. 

The  plaintiff  demurred  to  this  plea,  as  not  containing  facts  suffi- 
cient to  constitute  a  cause  for  the  abatement  of  the  action.  The 
plaintiff  declining  to  plead  further,  but  electing  to  stand  upon  its 

WTong  county  or  district  was  held  to  be  waived  :  Woolf  v.  McGaugh,  175 
Ala.  299,  57  So.  754;  Eel  River  R.  R.  Co.  v.  State,  143  Ind.  231,  42  N.  E.  617; 
Gillen  v.  111.  Cent.  Ry.  Co.,  137  Ky.  375,  125  S.  W.  1047;  Webb  v.  Goddard, 
46  Me.  505;  Murphy  v.  Merrill,  12  Cush.  (Mass.)  284;  Putnam  v.  Bond,  102 
Mass.  370;  Norberg  v.  Heineman,  59  Mich.  210,  20  N.  W.  481;  Bishop  v. 
Silver  Lake  Mining  Co.,  62  N.  H.  455;  Blackford  v.  Lehigh  Valley  Ry.  Co., 
53  N.  J.  L.  56,  20  Atl.  735;  Bunker  v.  Langs,  76  Hun  (N.  Y.),  543,  28  N.  Y. 
Supp.  210;  Sentenis  v.  Ladew,  140  N.  Y.  463, 35  N.  E.  650,  37  Am.  St.  Rep.  569; 
FenneU  v.  Guffey,  155  Pa.  38,  25  Atl.  785;  De  la  Vega  v.  League,  64  Tex.  205. 
—  Ed. 


i^-ajj- 


fti  "iflt^  ■■^>i.4>wc»<. 


jjt:f  dJu-dj.^  cv^^, 


70  APPEARANCE 

demurrer  to  the  plea,  the  court  adjudged  that  the  plaintiff  take 
nothing  by  its  action,  and  that  the  defendant  recover  costs. 

The  plaintiff  thereupon  presented  a  petition  for  the  allowance 
of  a  writ  of  error  "  for  the  review  of  the  judgment  heretofore  ren- 
dered therein  in  favor  of  the  defendants  and  against  the  plaintiff, 
therein  holding  and  deciding  that  this  court  has  no  jurisdiction  of 
said  action;  "  and  assigned,  as  errors,  that  the  Circuit  Court  erred, 
1st,  in  overruling  the  plaintiff's  demurrer  to  the  plea  in  abatement; 
2d,  in  sustaining  the  plea  in  abatement,  and  holding  that  the  court 
had  no  jurisdiction  of  the  cause;  3d,  in  entering  judgment  in  favor 
of  the  defendants  and  against  the  plaintiff  on  the  plea  in  abatement, 
and  dismissing  and  ouashiiig  the  proceedings.  The  writ  of  error- 
was  thereupon  allowed  by  the  judge  presiding  in  the  Circuit  Court. 

Gray,  J.^  .  .  .  The  act  of  March  3,  1887,  c.  373,  as  corrected 
by  the  act  of  August  13,  1888,  c.  866,  confers  upon  the  Circuit 
Courts  of  the  United  States  original  jurisdiction  of  all  civil 
actions,  at  common  law  or  in  equity,  between  citizens  of  different 
States,  in  which  the  matter  in  dispute  exceeds,  exclusive  of  in- 
terest and  costs,  the  sum  or  value  of  $2000;  and  provides  that 
"  where  the  jurisdiction  is  founded  only  on  the  fact  that  the 
action  is  between  citizens  of  different  States,  suit  shall  be  brought 
only  in  the  district  of  the  residence  of  either  the  plaintiff  or  the 
defendant."     24  Stat.  552;  25  Stat.  433. 

The  Circuit  Courts  of  the  United  States  are  thus  vested  with 
general  jurisdiction  of  civil  actions,  involving  the  requisite  pecu- 
niary value,  between  citizens  of  different  States.  Diversity  of 
citizenship  is  a  condition  of  jurisdiction,  and,  when  that  does  not 
appear  upon  the  record,  the  court,  of  its  own  motion,  will  order  the 
action  to  be  dismissed.  But  the  provision  as  to  the  particular  dis- 
trict in  which  the  action  shall  be  brought  does  not  touch  the  general 
jurisdiction  of  the  court  over  such  a  cause  between  such  parties; 
but  affects  only  the  proceedings  taken  to  bring  the  defendant 
within  such  jurisdiction,  and  is  a  matter  of  personal  privilege, 
which  the  defendant  may  insist  upon,  or  may  waive,  at  his  election; 
and  the  defendant's  right  to  object  that  an  action,  within  the  gen- 
eral jurisdiction  of  the  court,  is  brought  in  the  wrong  district,  is 
waived  by  entering  a  general  appearance,  without  taking  the 
objection.  Oracle  v.  Palmer,  8 -Wheat.  699;  Toland  v.  Sprague, 
12  Pet.  300,  330;  Ex  parte  Schohenberger,  96  U.  S.  369,  378;  St. 
Louis  &  San  Francisco  Railway  v.  McBride,  141  U.  S.  127;  South- 

1  A  i);irt  of  the  opinion  is  omitted.  —  Ed, 


WHEELOCK    V.    LEE  71 

ern  Pacific  Co.  v.  Denton,  146  U.  S.  202,  206;  Texas  &  Pacific  Rail- 
way V.  Saunders,  151  U.  S.  105;  Central  Trust  Co.  v.  INIcGeorge, 
151  U.  S.  129;  Southern  Express  Co.  v.  Todd,  12  U.  S.  App. 
351.  .  .  . 

Judgment  reversed,  and  case  remanded  with  directions  to  sustain 
the  demurrer  to  the  plea,  and  for  further  proceedings  not  inconsist- 
ent with  this  opinion.^ 


WHEELOCK,  Assignee,  etc.  v.  LEE. 

Court  of  Appeals  of  New  York.     1878. 

[Reported  74  New  York,  495.] 

Rapallo,  J.^  The  defendant  set  up  in  his  answer  that  the  plain- 
tiff's cause  of  action,  if  any,  did  not  arise  in  the  city  of  Brooklyn 
but  in  the  city  of  New;^  York.  That  at  the  time  of  the  commence- 
ment of  this  action  the  defendant  chd  not  reside  in  the  city  of  Brook- 
lyn, that  he  never  resided  or  had  a  place  of  business  there,  and  that 
the  summons  was  served  in  the  city  of  New  York  and  not  in  the 
city  of  Brooklyn  and  that  consequently  the  City  Court  of  Brook- 
lyn had_no Jurisdiction  of  the  person  of  the  defendant  or  of  the 
action.  These  allegations  are  substantiated  by  the  evidence  and 
findings,  and  it  is  conceded  that  they  establish  a  want  of  jurisdic- 
tion in  the  city  court  and  a  fatal  objection  to  the  judgment,  unless 
such  objection  has  been  waived  or  cured. 

This  question,  was  not  passed  upon  nor  did  it  arise  when  this 
ease  was  before  us  on  the  first  appeal.  The  facts  upon  which  the 
objection  is  based  were  not  in  the  case,  the  court  below  having 
excluded  proof  of  them.  A  new  trial  was  ordered  on  other  excep- 
tions. The  defendant,  by  putting  in  a  general  appearance,  fol- 
lowed by  an  answer  setting  up  the  want  of  jurisdiction,  did  not 
waive  that  defense.  This  was  expressly  decided  in  the  case  of 
Landers  v.  Staten  Island  Railroad  Co.,  53  N.  Y.  450,  460.  The 
prevailing  opinion  in  that  case  sets  forth  fully  the  grounds  upon 
which  it  w^as  held  that  the  city  court  was  without  jurisdiction. 
They  are  in  substance  that  the  city  court  was  a  local  court  of 
limited  jurisdiction  at  the  time  of  the  adoption  of  the  judiciary 
article  of  the  State  Constitution  in  1869  and  that  it  was  continued 

1  See  In  re  Moore,  209  U.  S.  490,  52  L.  ed.  904,  28  S.  Ct.  706,  14  Ann.  Cas. 
1164;  Ingersoll  v.  Coram,  211  U.  S.  3.35,  .53  L.  ed.  20S,  29  S.  Ct.  92.  —  Ed. 

2  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 


4_  wix^L...-^  c^rv^  '**nfi7 — r-.  4^ 


72  APPEARANCE 

as  such  and  it  was  even  beyond  the  power  of  the  Legislature  to 
divest  it  of  its  local  character.  That  its  jurisdiction  was  limited 
to  cases  in  which  the  cause  of  action  arose  within  its  territorial 
limits,  and  cases  in  which  the  subject  of  the  action  was  situated, 
or  the  party  proceeded  against  resided,  or  was  served  with  process, 
within  those  limits.  That  some  one  or  more  of  these  elements  of 
locahty  must  exist  to  confer  upon  the  court  jurisdiction  of  the 
cause.  It  follows. tjiat  where  none  of  them  exists,  a  mere  appear- 
ance  dqes.not_preclu.de  the  defendant  from  taking  the  objection. 
Where  no  other  ground  of  jurisdiction  exists,  the  service  within  the 
county  is  a  jurisdictional  fact.  [Its  omission  is  not  cured  by  an 
appearance,  for  the  objection  is  not  simply  that  the  court  has  not 
jurisdiction  of  the  person  of  the  defendant,  but  that  it  has  not  juris- 
diction of  the  cause.  Burckle  v.  Eckhart,  3  Comst.  132.  In  a 
case  in  which  the  court  had  jurisdiction  of  the  cause  on  some  of  the 
other  grounds,  as,  for  instance,  where  the  cause  of  action  arose 
within  the  city  of  Brooklyn,  the  general  rule  would  apply,  that  a 
general  appearance  cures  any  defect  in  the  service  of  process  to 
bring  the  defendant  into  court,  and  even  the  total  absence  of  any 
service.  But  where,  as  in  this  case,  the  only  element  of  locality 
which  can  exist,  and  the  only  means  by  which  the  cause  can  be 
brought  within  the  jurisdiction  of  the  court  as  a  local  court,  is  the 
service  of  the  summons  within  a  certain  territory,  that  rule  is  not 
applicable.  But  the  point  having  been  expressly  adjudged  it  is  not 
necessary  to  pursue  it  farther.  .  .  . 
All  concur,  except  Miller  and  Earl,  JJ.,  absent. 

Judgment  reversed.^ 

BAYLEY  and  Another  v.  BUCKLAND  and  Others. 

Court  of  Exchequer.     1847. 

[Reported  1  Exchequer,  1.] 

RoLFE,  B.2  We  took  time  to  consider  this  case,  in  order  that 
we  might  determine  what  rule  it  might  be  proper  to  lay  down  as  a 

1  As  to  the  effect  of  a  general  appearance  upon  jurisdiction  of  the  subject 
of  the  action,  see  Davis  v.  Packard,  7  Pet.  (U.S.),  276;  Continental  Ins.  Co. 
V.  Rhoads,  119  U.  S.  237,  30  L.  ed.  380,  7  S.  Ct.  193;  German  Sav.  &  L.  Soc. 
V.  Dereintzer,  192  U.  S.  125,  48  L.  ed.  221,  24  S.  Ct.  221;  Murphy  v.  People, 
221  111.  127,  77  N.  E.  439;  Dudley  v.  Mayhew,  3  N.  Y.  9;  Davidsburgh  v. 
Knickerbocker  Life  Ins.  Co.,  90  N.  Y.  526;  Chambers  v.  Feron  and  Ballou  Co., 
56  N.  Y.  Supp.  338;  Holton  v.  Holton,  64  Or.  290,  129  Pac.  532,  48  L.  R.  A. 
(n.  8.),  779.  — Ed. 

*  The  statement  of  facts  is  omitted.  —  Ed. 


^ '^./IfrAy^x:^ 


BAYLEY  v.    BUCKLAND  73 

guide  to  similar  cases  in  future.  There  is  no  dispute  as  to  the  facts. 
The  plaintiffs  commenced  their  acjtion  against  the  several  defend- 
ants, including  Mr.  George  Gordbh>  the  party  now  applj-ing  for 
relief;  they  served  some  of  the  defendants,  not  including  the  appli- 
cant Mr.  Gordon,  with  the  writ,  and  after  this  an  attorney  at 
Neath,  Mr.  George  Leeds,  was  instructed  by  the  parties  served  to 
appear,  and  did  appear  for  all  the  defendants,  except  a  person  of  the 
name  of  Clarke,  for  whom  an  appearance  was  duly  entered  accord- 
ing to  the  form  of  the  statute  by  the  plaintiffs.  Mr.  Leeds  then, 
by  like  authority,  consented  to  a  judge's  order  to  stay  proceedings 
on  payment  of  debt  and  costs.  This  order  not  having  been  com- 
plied with,  judgment  against  all  the  defendants  was  signed,  and 
execution  sued  out.  Under  this  execution  the  goods  of  Mr.  Gordon 
were  seized  by  the  sheriff,  Mr.  Gordon  never  having  been  served 
with  the  writ,  and  having  given  no  authoritj^,  direct  or  indirect,  to 
Mr.  Leeds  to  appear  for  him.  He  now  applies  to  have  the  judg- 
ment set  aside,  either  as  an  irregular  judgment,  or,  if  a  regular 
judgment,  then  on  an  affidavit  of  merits,  and  on  payment  of  costs. 
The  only  other  material  fact  mentioned  in  the  affidavit  is,  that  Mr, 
George  Leeds,  the  attorney  by  whom  the  appearance  has  been 
entered,  is  in  solvent  circumstances. 

The  rule  of  law  hitherto  has  generally  been  considered  to  be  as 
stated  in  an  anon3^mous  case  in  Salkeld,  86,  that  "  where  an  attor- 
ney takes  upon  himself  to  appear,  the  Court  looks  no  further,  but 
proceeds  as  if  the  attorney  had  sufficient  authority,  and  leaves  the 
party  to  his  action  against  him;  "  but  they  qualified  it  in  Salkeld, 
88,  stating  that  the  judgment  was  regular,  "  but  that  if  the  attor- 
ney be  not  responsible  or  suspicious,  they  would  set  aside  the  judg- 
ment, for  other^\^se  the  defendant  has  no  remedy,  and  any  one  may 
be  undone  by  that  means."  It  must  be  admitted,  that  the  reason- 
ing is  not  very  clear  by  which  the  Court  arrived  at  the  conclusion 
that,  in  so  doing,  they  did  justice  to  the  defendant,  for  the  non- 
responsibility  or  suspiciousness  of  the  attorney  is  but  a  vague  sort 
of  criterion  of  safety  to  the  defendant,  and  by  the  hypothesis  the 
defendant  is  wholly  without  blame,  and  may  notwithstanding  be 
ruined.  It  is  true  that  the  plaintiff  is  equally  blameless,  but  then 
the  plaintiff,  if  the  judgment  be  set  aside,  has  his  remedy  against 
the  defendant  as  before,  and  suffers  only  the  delay  and  possible 
loss  of  costs. 

•*»  We  are  disposed  to  lay  down  a  different  rule,  and  to  confine  the 
liability  of  the  defendant  to  cases  in  which  the  course  of  the  pro- 
ceedings has  given  him  notice  of  the  action  being  brought  against 


74  APPEARANCE 

him.  When,  therefore,  a  defendant  has  been  served  with  process, 
and  an  attorney  without  authority  appears  for  him,  we  think  the 
Court  must  proceed  as  if  the  attorney  really  had  authority,  be- 
cause, in  that  case,  the  defendant,  having  knowledge  of  the  suit 
being  commenced,  is  guilty  of  an  omission  in  not  appearing  and 
making  defence  by  his  own  attorney,  if  he  has  any  defence  on  the 
merits.  There  the  plaintiff  is  without  blame,  and  the  defendant  is 
guilty  of  negligence.  But  even  in  that  case,  if  the  attorney  be  not 
solvent,  we  should  relieve  the  defendant  upon  equitable  terms,  if  he 
had  a  defence  on  the  merits.  If  the  attorney  were  solvent,  it  would 
not  be  unjust  to  leave  the  defendant  to  his  remedy  by  summary 
application  against  him. 

On  the  other  hand,  if  the  plaintiff,  without  serving  the  defendant, 
accepts  the  appearance  of  an  unauthorized  attorney  for  the  defend- 
ant, he  is  not  wholly  free  from  the  imputation  of  negligence;  the 
law  requires  him  to  give  notice  to  the  defendant  by  serving  the 
writ,  and  he  has  not  done  so.  The  defendant  there  is  wholly  free 
from  blame,  and  the  plaintiff  not  so ;  and  upon  the  same  principle 
on  which  we  before  proceeded,  we  must  set  aside  the  judgment  as 
irregular,  with  costs,  and  leave  the  plaintiff  to  recover  those  costs, 
and  the  expense  to  which  he  has  been  put,  from  the  delinquent 
attorney,  by  summary  proceedings.  The  case  of  Hubbart  v.  Phil- 
lips, 13  M.  &  W.  702,  is  an  authority  for  such  an  application. 
Now,  applying  those  principles  to  the  present  case,  it  is  clear  that 
this  judgment  is  irregular,  and  the  rule  must  be  made  absolute  for 
setting  it  aside.  Rule  absolute.^ 

1  As  to  the  effect  on  domestic  and  on  foreign  judgments  of  an  appearance 
for  the  defendant  by  an  attorney  not  authorized  by  the  defendant  to  appear 
forhim,  see Shelton?;. Tiffin,  6  How.  (U.S.),  163,  12L.  ed.  387;  Hillr.  Menden- 
haU,  21  Wall.  (U.  S.),453,  22  L.  ed.  61G;  Hatfield  v.  King,  184  U.  S.  162,  46 
L.  ed.  481,  22  S.  Ct.  477;  Harshey  v.  Blackmarr,  20  la.  161,  89  Am.  Dec.  520; 
Gihnan  v.  Oilman,  126  Mass.  26,  30  Am.  Rep.  646;  Corbitt  v.  Timmerman, 
95  Mich.  581,  55  N.  W.  437,  35  Am.  St.  Rep.  586;  Lipps  v.  Panko,  93  Neb. 
469,  140  N.  W.  761;  Denton  v.  Noyes,  6  Johns.  (N.  Y.),  293,  5  Am.  Dec. 
237;  Vilas  v.  P.  &  M.  R.  R.  Co.,  123  N.  Y.  440,  25  N.  E.  941,  9  L.  R.  A. 
844,  20  Am.  St.  Rep.  771.  And  see  Black,  Judgments,  2nd  ed.,  sees.  325, 
374;  Freeman,  Judgments,  4th  ed.,  sec.  563;  3  Cyc.  531;  2  Encyc.  PI.  & 
Pr.  682;    and  a  collection  of  cases  in  21  L.  R.  A.  848.  —  Ed. 


^ 


!>!- 


^^V" 


CHAPTER  IV. 

FORMS   OF  ACTION. 

Section  I. 
Actions  at  Common  Law. 
[Chitty,  Pleading  (Sixteenth  American  Edition),  Vol.  I,  *109-*110.] 
Actions  are,  from  their  subject-matter,  distinguished  into  real, 


r-.  X 


'personal,  and  mixed.     Real  actions  are  for  the  specific  recovery  of 

real  property  only,  and  in  which  the  plaintiff,  then  called  the  de- 
mandant, claims  title  to  lands,  tenements,  or  hereditaments,  in  ;..--, /o^i^  ■>>< 
fee-simple,  fee-tail,  or  for  term  of  life,  such  as  writs  of  right,  forme-  ■ 
don,  dower,  &c.  Personal  actions  are  for  the  recovery  of  a  debt  or 
damages  for  the  breach  of  a  contract,  or  a  specific  personal  chattel, 
or  a  satisfaction  in  damages  for  some  injury  to  the  person,  personal, 
or  real  property.  In  mixed  actions,  which  partake  of  the  nature 
of  the  other  two,  the  plaintiff  proceeds  for  the  specific  recover}^  of 
some  real  property,  and  also  for  damages  for  an  injury  thereto,  as 
in  the  instance  of  an  action  of  ejectment  or  of  waste,  or  quare  im- 
pedit.  We  will  confine  our  observations  to  such  personal  and 
■— N.  mixed  actions  as  most  frequently  occur  in  practice. 

^\^         Personal  actions  are  in  form  ex  contractu  or  ex  delicto,  or,  in  other 
y^bfr-AM^  words,  are  for  breach  of  contract,  or  for  wrongs  unconnected  wdth    , 
.  u^oti'  contract.      Thosqupon  contracts  are  principally  assumpsit,  debt,   t*. y*'*"*''^^ 
Jij^^^S^'vensiY^  andf^tinuej   and  those  for  wrongs  are  case, !  trover,'\  '^  ' 
,  rfeplevm^  and  trespass  vi  et  armis.     We  will  take  a  concise  view  of  . 
tlie  nature  and  particular  applicability  of  each  of  these  respective 
remedies,  and  of  the  action  of  ejectment,  and  of  that  of  trespass  for 
mesjie  profit;  in  effect  a  branch  of  trespass  quare  clausum  f regit. 

^A^^'^^[S!eplien,  Pleading  (WilUston's  Edition),  *5-*9.1 


«M^ 


Anciently  it  was  essential  to  the  due  institution  of  all  actions  in 
the  Superior  Courts,  that  they  should  commence  by  original  writ; 
in  the  case  of  real  and  mixed  actions  this  is  still  necessary.  But  in 
personal  actions  the  use  of  original  writs  is  aboHshed  by  the  recent 
statute  2  Will.  IV.  c.  39. 

The  original  writ  (breve  originale)  is  a  mandatory  letter  issuing 
out  of  the  Court  of  Chancery,  under  the  great  seal,  and,  in  the 

76 


76  FORMS   OF  ACTION 

King's  name,  directed  to  the  sheriff  of  the  county  where  the  injury 
is  alleged  to  have  been  committed,  containing  a  summary  state- 
ment of  the  cause  of  complaint,  and  requiring  him  to  command  the 
defendant  to  satisfy  the  claim ;  and,  on  his  failure  to  comply,  then 
to  summon  him  to  appear  in  one  of  the  superior  courts  of  common 
law,  there  to  account  for  his  non-compliance.  In  some  cases,  how- 
ever, it  omits  the  former  alternative,  and  requires  the  sheriff  simply 
to  enforce  the  appearance. 

The  original  writs  differ  from  each  other  in  their  tenor,  according 
to  the  nature  of  the  plaintiff's  complaint,  and  are  conceived  in  fixed 
and  certain  forms.  Many  of  these  forms  are  of  a  remote  and  un- 
defined antiquity,  but  others  are  of  later  origin,  and  their  history 
is  as  follows.  The  most  ancient  writs  had  provided  for  the  most 
obvious  kinds  of  wrong;  but  in  the  progress  of  society,  cases  of 
injury  arose,  new  in  their  circumstances,  so  as  not  to  be  reached  by 
any  of  the  writs  then  known  in  practice;  and  it  seems  that  either 
the  clerks  of  the  Chancery  (whose  duty  it  was  to  prepare  the  orig- 
inal writ  for  the  suitor)  had  no  authority  to  devise  new  forms  to  f\ 
meet  the  '^xTgenc^^  of  such  new  cases,  or  their  authority  was  doubt- 
ful, or  they  were  remiss  in  its  exercise.  Therefore  by  the  statute/^/t^^ 
of  Westminster  2,  13  Ed.  I.  c.  24,  it  was  provided,  "  That  as  often 
as  it  shall  happen  in  the  Chancery,  that  in  one  case  a  writ  is  found, 
and  in  a  like  case  (in  consimili  casu)  falling  under  the  same  right, 
and  requiring  like  remedy,  no  writ  is  to  be  found,  the  clerks  of  the 
Chancery  shall  agree  in  making  a  writ,  or  adjourn  the  complaint 
till  the  next  parliament,  and  write  the  cases  in  which  they  cannot 
agree,  and  refer  them  to  the  next  parliament,"  &c.  This  statute 
it  will  be  observed,  while  it  gives  to  the  officers  of  the  Chancery  the 
power  of  framing  new  writs  in  consimili  casu  with  those  that  for- 
merly existed,  and  enjoins  the  exercise  of  that  power,  does  not  give 
or  recognize  any  right  to  frame  such  instruments  for  cases  entirely 
new.  It  seems,  therefore,  that  for  any  case  of  that  description,  no 
writ  could  be  lawfully  issued,  except  by  authority  of  parhament. 
But  on  the  other  hand,  new  writs  were  copiously  produced,  ac- 
cording to  the  principle  sanctioned  by  this  act,  i.  e.,  in  consimili 
casu,  or  upon  the  analogy  of  actions  previously  existing:  and  other 
writs  also,  being  added  from  time  to  time,  by  express  authority 
of  the  legislature,  large  accessions  were  thus,  on  the  whole,  made 
to  the  ancient  stock  of  hrevia  originalia. 

All  forms  of  writs  once  issued,  were  entered  from  time  to  time, 
and  preserved,  in  the  Court  of  Chancery,  in  a  book  called  The  Reg- 
ister of  Writs,  which  in  the  reign  of  Hen.  VIII.  was  first  committed 


MITCHELL    V.    MCNABB  77 

to  print  and  published.  This  book  is  still  in  authority,  as  contain- 
ing, in  general,  an  accurate  transcript  of  the  forms  of  all  original 
writs  as  then  framed.  It  seems,  however,  that  a  variation  from 
the  Register  is  not  conclusive  against  the  propriety  of  a  form,  if 
other  sufficient  authority  can  be  adduced  to  prove  its  correctness. 
An  original  WTit  (as  already  stated)  was  formerly  essential  in 
every  case,  to  the  due  institution  of  the  suit.  These  instruments 
have  consequently  had  the  effect  of  limiting  and  defining  the  right 
of  action  itself;  and  no  cases  are  even  now  considered  as  within 
the  scope  of  judicial  remedy,  in  the  EngUsh  law,  but  those  to  which 
some  known  original  writ  (when  these  instruments  were  in  univer- 
sal use)  would  have  applied,  or  for  which  some  new  original  writ, 
framed  on  the  analogy  of  those  already  existing,  might,  under  the 
provisions  of  the  statute  of  Westminster  2,  have  been  la\vfully 
devised.  The  enumeration  of  wTits,  and  that  of  actions,  have  be- 
come, in  this  manner,  identical. 


^     MITCHELL   V.   McNABB. 
Supreme  Judicial  Court  of  Maine.     1870. 
[Reported  58  Maine,  506.] 

On  exceptions  to  the  ruling  of  Goddard,  J.,  of  the  superior  court 
for  the  county  of  Cumberland. 

Debt,  "  for  that  the  said  defendant,  at  said  Portland,  on  the  30th 
day  of  INIay,  a.d.  1870,  by  his  Avriting  obligatory  of  that  date, 
sealed  with  his  seal  and  here  in  court  to  be  produced,  therein  sold 
to  the  plaintiff  the  good-will  of  his  business,  and  therein  agreed  not 
to  carry  on  the  boot  and  shoe  business  in  the  city  of  Portland  foi 
one  year  from  the  date  thereof.  Yet  the  said  defendant,  not  re- 
garding his  said  agreement,  did  again  commence  the  boot  and  shoe 
business  in  said  city  of  Portland,  on  the  first  day  of  July  thereafter, 
and  hath  continued  to  carry  on  the  boot  and  shoe  business  in  said 
city  of  Portland,  from  said  first  day  of  Jul}^  to  the  day  of  the  pur- 
chase of  this  WTit.  And  the  plaintiff  avers  that  the  said  defen- 
dant, by  not  keeping  his  said  agreement,  has  damaged  liim  in  his 
business  the  sum  of  two  hundred  dollars." 

To  this  declaration  the  defendant  filed  a  general  demurrer  which 
the  plaintiff  joined.  The  presiding  judge  sustained  the  demurrer 
and  adjudged  the  declaration  bad;  whereupon  the  plaintiff  alleged 
exceptions. 


78  FORMS    OF   ACTION 

The  instrument  declared  on  was  a  formal  bill  of  sale,  under  seal, 
with  covenants  in  the  usual  form,  of  certain  tools  used  in  and  about 
the  manufacture  of  boots  and  shoes,  "  together  with  the  good-will 
of  "  the  vendor's  "  business."  Then  followed  the  agreement, 
"  and  I  hereby  agree  not  to  carry  on  the  boot  and  shoe  business  in 
said  city  for  one  year  from  the  date  hereof." 

The  case  was  not  entered  upon  the  district  docket,  but  was  certi~ 
fied  directly  to  the  chief  justice,  in  accordance  with  the  statute. 

Appleton,  C.  J.  This  is  an  action  of  debt.  The  writ  is  dated 
Oct.  14,  1870.  The  declaration  sets  forth  an  agreement,  under 
seal,  signed  by  the  defendant,  in  and  by  which  he  "  agreed  not  to 
carry  on  the  boot  and  shoe  business  in  the  city  of  Portland  for  one 
year,"  from  May  31,  1870,  and  an  averment  that  from  the  first  day 
of  July  he  "  continued  to  carry  on  the  boot  and  shoe  business  in 
said  city  of  Portland  to  the  day  of  the  purchase  of  this  writ."  To 
this  the  defendant  demurred,  the  demurrer  was  sustained,  and  the 
plaintiff  excepted.  The  question  presented  is  whether  debt  is 
maintainable. 

The  declaration  sets  forth  no  promise  to  pay  any  money  under 
any  terms  or  conditions,  but  simply  an  agreement  to  abstain  from 
selling  boots  and  shoes  at  a  particular  place  and  for  a  stipulated 
time,  and  a  violation  of  such  agreement.  The  damages  in  such 
case  must  obviously  be  uncertain  and  unlic|uidated. 

Debt  lieswhen  one^i^_entiUMiQrec£ive,a  certain,  and  liquidated 
suin  of  money,  or  in  case  of  a  bond  for  the  payment  of  money,  or 
the  performance  of  some  act  under  a  penalty,  or  for  goods  sold  and 
delivered,  etc.  "  Debt,"  remarks  Richardson,  C,  J.,  in  Lowell  v. 
Bellows,  7  N.  H.  391,  *'  is  the  proper  action,  whenever  the  demand 
is  for  a  sum  certain,  or  is  capable  of  being  readily  reduced  to  a  cer- 
tainty; but  it  is  not  the  proper  remedy  when  the  demand  is  rather 
for  unliquidated  damages  than  for  money,  unless  the  performance 
of  the  contract  is  secured  by  a  penalty.  1  Chit.  PI.  101."  "  The 
true  test,"  remarks  Story,  J.,  in  Bullard  v.  Bell,  1  Mason,  543,  "  is, 
therefore,  whether  the  sum  to  be  recovered  has,  upon  the  contract 
itself,  a  legal  certainty."  Debt  "  hes  only  for  the  recovery  of  a 
sum  of  money  in  numero,  and  not  where  the  damages  are  unliqui- 
dated and  incapable  of  being  reduced  by  averment  to  a  certainty." 
1  Chit.  PI.  113.  Debt  will  not  he  on  a  contract  of  indemnity 
against  unliquidated  or  unascertained  damages.  Flannagan  v. 
Com.  Ins.  Co.,  1  Dutch.  (N.  J.)  506;  Rutan  v.  Hopper,  5  Dutch. 
(N.  J.)  112.     As  the  action  of  debt  is  for  the  recovery  of  a  sum  of 


VAN    DEUSEN    V.    BLUM  79 

money,  the  breach  or  cause  of  action  complained  of  must  neces- 
sarily originate  out  of  the  non-payment  of  the  money  previously 
alleged  to  be  payable.  But  here  there  was  not  and  could  not  be 
the  allegation  of  any  sum  of  money  which  the  defendant  was  bound 
to  pay,  and  for  the  neglect  to  pay  which  he  should  be  held  responsi- 
ble in  damages.  Exceptions  overruled.^ 
Cutting,  Kent,  Walton  and  Tapley,  JJ.,  concurred. 


/     VAN   DEUSEN  et  al.  v.  BLUM  et  al. 
Supreme  Judicial  Court  of  Massachusetts.     1836. 
[Reported  18  Pickering,  229] 

This  was  an  action  of  debt.  The  declaration  contained  two 
counts  upon  a  special  contract  under  seal,  a  third  upon  a  quantum 
meruit  for  labor  performed,  and  a  fourth  upon  a  quantum  valebant 
for  materials  furnished.  The  defendant  Blum  was  defaulted;  the 
other  defendant,  Thouvenin,  appeared,  and  to  the  two  first  counts 
he  pleaded  nan  est  factum,  and  to  the  third  and  fourth,  nil  debet. 

At  the  trial,  before  Morton,  J.,  the  plaintiffs  produced  the  con- 
tract, purporting  to  be  between  themselves  of  the  one  part,  and 
Blum  and  Thouvenin  of  the  other  part.  Blum  and  Thouvenin 
were  partners,  and  were  so  described  in  the  contract.  The  plain- 
tiffs had  duly  executed  the  contract,  and  Blum  also  had  executed  it 
by  signing  the  company  name  "  J.  C.  Thouvenin  &  Co.,"  and 
annexing  a  seal.  There  was  no  evidence  that  he  had  any  authority 
to  execute  the  contract  in  behalf  of  Thouvenin,  or  that  Thouvenin 
was  present  at  the  execution  or  ever  ratified  it. 

The  judge  ruled,  that  the  instrument  could  not  go  in  evidence  to 
the  jury  as  the  deed  of  Thouvenin. 

The  contract  was  for  building  a  dam  by  the  plaintiffs  for  Blum 
and  Thouvenin,  across  the  Housatonic  river;  which  was  a  purpose 
within  the  scope  of  the  partnership  business.  The  plaintiffs 
offered  to  prove  that  they  built  the  dam  and  furnished  the  mate- 
rials therefor,  and  they  claimed  against  Thouvenin,  under  the  third 
and  fourth  counts,  what  their  work  and  materials  were  worth. 
Thouvenin  objected  to  the  admission  of  this  evidence,  and  con- 
tended that  there  being  an  express  contract  executed  by  the  plain- 

1  See  also  Flanagan  v.  Camden  Mut.  Ins.  Co.,  25  N.  J.  L.  506.  —  Ed. 


80 


FORMS    OF   ACTION 


T 


it 


tiffs  and  Blum,  and  that  contract  being  in  force  and  binding  upon 
Blum,  the  plaintiffs'  remedy  was  on  that  instrument  alone. 

But  the  judge  ruled,  that  the  plaintiffs  might,  notwithstanding 
that  contract,  recover  under  the  third  and  fourth  counts,  upon  an 
implied  promise,  for  all  the  materials  furnished  and  labor  performed 
before  the  dissolution  of  the  partnership. 

Thouvenin  and  Blum  dissolved  partnership  on  the  10th  of  No- 
vember, 1832,  and  all  the  partnership  property  was  conveyed  to 
Blum,  and  he  agreed  to  pay  all  the  partnership  debts.  The  dam 
was  not  finished  until  after  the  10th  of  November,  and  for  the  work 
done  previously  to  that  day  the  jury  found  a  verdict  against  Thou- 
venin. 

The  questions  arising  upon  these  facts  were  reserved  for  the 
consideration  of  the  whole  Court. 

Morton,  J.,  delivered  the  opinion  of  the  Court.  Debt,  as  well 
as  assumpsit,  will  lie  on  a  quantum  meruit  or  a  quantum  valebant. 
1  Chit.  PI.  107;  2  Wms's  Saund.  117  b,  note;  Union  Cotton 
Manufactory  v.  Lobdell,  13  Johns.  R.  462.  Hence  these  counts 
may  well  be  joined  with  counts  upon  a  specialty.  Smith  v.  First 
Congr.  Meetinghouse  in  Lowell,  8  Pick.  178. 

It  was  long  doubted,  whether  a  man,  who  performed  work  in 
consequence  of  a  special  contract,  but  not  in  conformity  to  it,  could 
recover  for  the  services  rendered  and  materials  found.  There  are 
many  and  conflicting  authorities  on  the  subject.  They  have  all 
been  carefully  examined  and  compared,  and  the  rule  established 
by  our  Court,  as  we  think,  according  to  the  principles  of  justice  and 
the  weight  of  authority.  He  who  gains  the  labor  and  acquires  the 
property  of  another,  must  make  reasonable  compensation  for  the 
same.  Hayward  v.  Leonard,  7  Pick  181;  Smith  v.  First  Congr. 
Meetinghouse  in  Lowell,  8  Pick.  178;  Munroe  v.  Perkins,  9  Pick. 
298;  Brewer  v.  Tyringham,  12  Pick.  547. 
^'  The  general  authority  derived  from  the  relation  of  partnership, 
•  does  not  empower  one  partner  to  seal  for  the  company  or  to  bind 
Lthem  by  deed.  It  requires  special  power  for  this  purpose.  See 
Cady  V.  Shepherd,  11  Pick.  400,  and  the  cases  there  cited.  Here 
was  no  evidence  of  any  previous  authority  or  subsequent  ratifica- 
tion. The  sealed  instrument  executed  by  one  partner  in  the  name 
of  the  firm,  might  bind  him,  but  could  not  be  obligatory  upon  the 
company.  And  although  the  plaintiffs  might  have  had  a  remedy 
upon  the  contract  against  the  party  who  executed  it,  yet  they  were 
not  bound  to  rely  upon  him  alone. 


VA^    SANTWOOD    V.    SANDFORD  81 

The  services  never  were  rendered  either  in  conformity  to  or 
under  such  an  agreement.  The  plaintiffs  undertook  to  execute 
a  contract  between  themselves  and  the  company.  But  there 
being  no  such  contract  in  existence,  they  are  left  to  resort  to  their 
equitable  claim  for  their  labor  and  materials.  So  Jar  as  these 
benefited  the  company,  the  plaintiffs  are  entitled  to  recover  against 
them.  Judgment  on  the  verdict} 


VAN.  SANTWOOD   and  Another  v.  SANDFORD. 

Supreme  Court  of  New  York.     1815. 

[Reported  12  Johnson,  197.] 

This  was  an  action  of  covenant.      The  declaration  contained 

four  counts.      The  fourth  count,  that  certain  differences  having 

arisen  between  the  plaintiffs  and  one  Isaac  Newton,  they,  on  the 

22d  of   March,  1814,  entered   into  articles  of  agreement,  in  the 

jj  y^  words  following;    (setting  forth  the  agreement  to  submit  to  arbi- 

fT      trationftJir6ai!m)  —  "And  hereupon  the  said  defendant,  on  the 

'"^I.A^^   I  24th  day  of  March,  in  the  year  aforesaid,  entered  into  a  guaranty, 

Xj^-^y  covenant,  and  agreement,  in  the  words  and  figures  following,  to 

wit:   (setting  forth  the  agreement  of  the  defendant  verbatiin):  and 

which  concluded  in  the  follo^ving  words:    "  signed  and  sealed  the 

24th  day  of  March,  1814.     Stephen  Sandford,  (L.  S.)."    And  by 

L^^^^v^ which  the  defendant  guaranteed  the  performance  of  the  award  of 

_k      "tKej&rbitrator^on  the  part  of  Newton,  to  the  amount  of  800  dollars. 

i}^"^^     The  plaintiffs,  in  this  court,  then  stated  an  award  of  the  arbitra- 

j^v»^     tors,  that  Newton  should  pay  to  them,  680  dollars  and  36  cents,  in 

two  days  thereafter,  and  notice  of  the  award  to  Newton,  and  to  the 

defendant,  that  neither  of  them  had  paid  the  money;  and  that  the 

defendant  had  not  kept  his  said  covenant  and  guaranty  so  by^him 

made,  &c. 


To  this  count  there  was  a  demurrer  and[joinder] 
Spencer,  J.,  delivered  the  opinion  of  the  court.     Tte  demurrer 
to  the  fourth  count  is  well  taken;   the  action  is  covenant,  and  it 

1  See  Seretto  v.  Rockland,  etc.,  Ry.,  101  Me.  140,  63  Atl.  651;  Thompson  v. 
French,  10  Yerg.  (Tenn.),  452.  But  see  Young  v.  Ashburnsham,  3  Leon.  161. 
As  to  the  general  scope  of  the  action  of  debt,  see  1  Chitty,  Pleading,  16th  Am. 
ed.,  *121.  As  to  the  history  of  the  action,  see  Ames,  Lectures  on  Legal  His- 
tory, 88,  122;  8  Harv.  L.  Rev.  252.  —  Ed. 


82  FORMS    OF   ACTION  ,v- 

\ . 

cannot  be  maintained  but  on  a  deed.  The  only  aVerment  or  alle- 
gation of  a  deed  is,  "  and  hereupon  the  defendant,  on  the  24th  day 
of  March,  in  the  year  aforesaid,  entered  into  a  guaranty,  covenant, 
and  agreement,  in  the  words  and  figures  following;  "  then  the  agree- 
ment is  set  out  in  haec  verba,  with  a  conclusion,  that  it  was  signed 
and  sealed  with  the  name  of  the  defendant,  and  the  locus  sigilli, 
purporting  to  be  a  literal  oyer  of  the  agreement. 

It  must  appear  that  the  contract  was  under  seal,  and  the  law 
will  not  intend  that  it  was  sealed,  unless  it  be  expressly  averred  to 
be  so,  and  though  the  bond  or  deed,  upon  oyer,  recite,  "  in  witness 
whereof  we  have  hereunto  set  our  hands  and  seals,"  yet  that  does 
not  amount  to  such  an  averment,  but  that  the  party  must  show 
that  the  bond  or  deed  was  actually  sealed  by  the  other.  These 
principles  will  be  found  in  Cabel  v.  Vaughan,  1  Saun.  291,  note  1, 
where  all  the  cases  are  carefully  and  accurately  collected.  There 
are  some  words  of  art,  such  as  indenture,  deed,  or  writing  obhga- ^2/0-viA< 
tory,  which,  of  themselves,  import  that  the  instrument  was  sealed  j^av\ 


\        ^^.•  but  if  it  be  alleged  that  J.  S.  by  his  certain  writing,  (clemisedtor.,^;  ^^ 
''^''"  -'.  '-''-■H^ovenanted;,  without  averring  that  it  was  sealed,  the  court  will  not^^  £^ 
intend  that  the  writing  was  sealed.     Cro.  Eliz.  571  ;  Ld.  Ray.-- — ' 
2537;  8  Com.  Dig.  Fait  (A.  2)  Pleader,  2  W.  9,  14. 

In  the  case  of  Warren  v.  Lynch,  5  Johns.  244,  this  court  de- 
cided that  a  scrawl  for  a  seal,  with  an  (L.  S.)  was  not  a  seal,  and 
deserved  no  notice,  and  that  calling  a  paper  a  deed  will  not  make  ^^^ 
it  one,  if  it  want  the  requisite  formalities.  The- oyer^vof  the  con-  \- — -^ 
tract,  therefore,  set  out  in  the  count  under  consideration,  can  have 
no  effect;  for  we  cannot  tell  that  the  original  differs  from  it,  or 
possesses  any  of  the  properties  of  a  seal. 

The  other  objections  taken  by  the  defendant's  counsel  are  not 
tenable,  but  it  is  not  now  necessary  to  consider  them,  as  the  count 
is  bad  for  the  reasons  assigned. 

Judgment  for  the  defendant,  with  leave  to  amend  on  the  usual 
terms.  ^ 

1  See  also  More  v.  Jones,  1  Barn.  K.  B.  61,  85. 

For  the  scope  of  the  action  of  covenant,  see  1  Chitty,  Pleading,  16th  Am. 
ed.,  *129.  —  Ed. 


McKAY    y.    DARLING  83 

McKAY  V.   DARLING. 

Supreme  Court  of  Vermont.     1893. 

[Reported  65  Vermont,  639.] 

Start,  J.^  The  action  is  assumpsit  and  the  plaintiff  seeks  to  re- 
cover for  services  in  sa^\^ng  lumber,  drawing  slabs,  and  for  damages 
sustained  by  him  by  reason  of  the  defendant's  failure  to  furnish 
slabs  pursuant  to  his  agreement.  These  items  are  all  provided  for 
in  a  wi'itten  contract  under  seal  and  from  the  facts  reported  by  the 
referee,  we  cannot  say  as  a  matter  of  law  that  the  sealed  instrument 
has  been  changed  or  modified. 

By  the  sealed  instrument  the  plaintiff  was  required  to  saw  the 
lumber  in  question,  the  price  to  be  paid  therefor  by  the  defendant 
and  time  of  payment  being  provided  for  therein. 

Each  party  was  to  pay  one-half  of  the  expense  of  drawing  away 
the  slabs  and  the  defendant  was  to  furnish  the  plaintiff  with  slabs 
for  use  in  his  engine.  The  referee  has  found  that  the  sawing  was 
done  under  this  contract;  that  the  defendant,  under  the  contract, 
should  pay  one-half  of  the  expense  of  getting  the  slabs  away  from 
the  mill ;  and  that  the  defendant  failed  to  furnish  the  slabs  stipu- 
lated in  the  contract.  From  these  findings,  it  is  clear  that  the 
parties  have  acted  under  the  sealed  contract,  and  that  there  has 
been  no  modification  of  it.  There  having  been  no  subsequent 
parol  modification  of  the  contract,  and  the  plaintiff  having  per- 
formed the  service  under  the  contract  in  reliance  upon  it,  and  the 
omission  of  the  defendant  being  an  omission  to  perform  and  keep 
the  covenants  contained  in  the  sealed  instrument,  the  action  of 
assumpsit  cannot  be  sustained.  The  plaintiff  has  a  remedy  by  an 
action  of  covenant  upon  the  sealed  contract,  and  having  this 
remedy  he  cannot  waive  it  and  bring  assumpsit.  Myrick  v.  Slason, 
19  Vt.  121;  Camp  v.  Barker,  21  Vt.  469;  King,  Fuller  &  Co.  v. 
Lamoille  Valley  R.  R.  Co.,  51  Vt.  369;  Wood  et  al.  v.  Edwards  et 
al.,  19  Johns.  205;  Codman  v.  Jenkins,  14  Mass.  93.  In_M>a•ick'^  / 
V.  Slason,  supra,  it  is  held  that  when  a  party  has  a  remedy  by  an  /  j^^-^-^ 
action  of  covenanTon  a  contract  under  seal,  he  is  precluded  from  J 
suing  in  assumpsit.  TT"! 

The  pro  forma  judgment  is  reversed  and  judgment  rendered  for  the 
defendant  to  recover  his  costs} 

*  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 
2  Drew  V.  Western  Union  Tel.  Co.,  Ill  Me.  340,  89  Atl.  144,  accord.    Com- 
pare Baldwin  v.  Emery,  89  Me.  496,  36  Atl.  997.  —  Ed. 


84  FORMS   OF   ACTION 

/     FELTON  V.   DICKINSON. 
Supreme  Judicial  Court  of  Massachusetts.     1813. 

[Reported  10  Massachusetts,  287.] 

The  declaration  in  this  case,  besides  several  uncontested  counts 
on  promissory  notes,  contained  an  indebitatus  assumpsit  for  two 
hundred  dollars  in  consideration  of  work  and  labour  performed  for 
the  defendant  by  the  plaintiff  and  at  his  request,  and  a  quantum 
meruit  for  the  same  work  and  labour. 

The  evidence  in  support  of  these  counts,  given  at  the  trial  of  the 
cause  upon  the  general  issue  before  Parker,  J.,  at  the  last  April 
term  in  this  county,  was  —  that  the  father  of  the  plaintiff,  when 
the  latter  was  about  fourteen  years  of  age,  placed  him  in  the  service 
of  the  defendant,  upon  an  agreement  that  the  plaintiff  was  to  re- 
main in  that  service  until  he  should  arrive  at  the  age  of  twenty-one 
years;  during  which  time  the  defendant  promised  to  support  him 
in  food  and  clothing,  and  at  the  end  of  the  term  of  service  that  he 
would  pay  him  two  hundred  dollars  in  money,  or  convey  to  him  a 
certain  lot  of  land  in  Vermont,  if  the  plaintiff  should  chuse  to  take 
it.  —  It  was  agreed  that  the  plaintiff  had  served  out  his  time;  and 
it  was  in  evidence  that  he  had  been  to  Vermont  to  examine  the 
land,  and  before  the  commencement  of  this  suit  had  signified  to  the 
defendant  his  refusal  to  accept  it.  — The  defendant  objected  that 
this  evidence  could  not  support  either  of  the  counts : —  1st.  Because 
it  proved  a  special  contract,  which  ought  to  have  been  set  forth.  — 
2d.  Because  the  promise,  as  proved,  was  made  to  the  father,  and 
not  to  the  plaintiff.  —  Both  these  objections  being  overruled  by  the 
judge,  a  verdict  was  returned  for  the  plaintiff;  and  the  defendant 
moved  for  a  new  trial  on  the  above  grounds. 

Per  curiam.  Two  objections  are  made  to  the  verdict  in  this 
case.  —  First,  that  the  special  matter  proved  was  not  properly 
admitted  to  support  a  general  indebitatus  assumpsit:  —  and  sec- 
ondly, that  the  promise  being  made  to  the  father,  he  was  entitled 
to  the  action,  and  not  the  present  plaintiff,  the  son.^ 

The  first  obj  ection  merits  some  consideration.  It  is  undoubtedly 
•  true,  that  where  there  is  a  special  agreement  relative  to  the  per- 
formance of  work  and  labour,  the  declaration  ought  to  state  that 
agreement;    in  order  that  the  defendant  may  be  apprized  of  the 

^  The  part  of  the  opinion  in  which  it  was  held  that  the  second  objection  was 
uiyt  vaUd,  is  omitted.  —  Ed. 


HEFNER   V.    FIDLER  85 

contract  he  is  charged  with  breaking,  and  may  have  opportunity 
to  shew  the  want  of  performance,  on  the  part  of  the  plaintiff,  of 
those  stipulations,  which  may  have  been  the  foundation  or  con- 
sideration of  the  promise  made  by  the  defendant. 

But  where  there  has  been  a  special  agreement,  the  terms  of^  ^   a 


which  have  been  performed,  so  that  nothing  remains  but  a  mere  ^ 
duty  to  pay  money,  there  seems  to  be  no  reason  why  a  general  _J 
count  should  not  be  sufficient  for  the  recovery  of  the  sum  due.  .  .  - 

Judgment  on  the  verdict} 

A     WALKER  ..   JONES.       J^^^,,,,^^J  J2^<>rfU^  ,  i 
Court  of  Exchequer.     1834.  .^j^^jJ^AAit.    wJ'\*«'vujrCMJML*'"f 
[Reported  2  Crompton  &  Meeson,  672.]     / 

In  this  case,  which  was  an  action  of  ^etinue^  the  defendant 
pleaded  a  plea  (traversing! the  delivery;   to  which  there  was  a  de-  / 

murrer.     On  the  demurrer  being  called  on  for  argument, 

Comyn  stated,  that  the  plea  had  been  drawn  from  a  precedent 
in  Chitty,  3  Chit.,  4th  ed.,  1028;  but  that,  after  the  case  of  Gled- 
stane  v.  Hewitt,  1  C.  &  J.  565,  from  which  it  appeared  that  the        ' 
bailment  in  detinue  was  immaterial,  he  could  not  support  the  plea. 

The  plea  was  ultimately  struck  out  on  payment  of  costs. 


^ 


HEFNER  et  al.  v.  FIDLER. 
Supreme  Court  of  Appeals  of  West  Virginia.     1905. 

[Reported  58  West  Virginia,  159.] 


^^c^A^J  t 


Sanders,  J.  This  is  an  action  of  detinue,  instituted  before  a 
justice  of  the  peace  of  Gilmer  county,  for  the  recovery  of  the  pos- 
session of  two  certain  promissory  notes  of  $62.50  each.  Upon  the 
trial  of  the  case,  both  before  the  justice  and  upon  appeal  to  the 
circuit  court,  judgment  was  rendered  in  favor  of  the  plaintiffs,  and|^|,,^^,y.^.^, ^ 
to  this  judgment  a  writ  of  error  and Mipersedeasjhas  been  allowed,  a       )        * 

The  defendants  sold  to  the  plaintiffs  one  four-horse  power  engine^'  ^t-^'  •    '^ 
and  boiler,  for  the  sum  of  $125.00,  to  be  paid  in  two  equal  pay-  .    .    / 
ments  of  $62.50  each,  for  which  they  executed  the  said  two  notes.  j 

The  plaintiffs  claim  that  shortly  after  the  consummation  of  the  /:>i,i,<ujij^\ 

^  For  the  .scope  of  the  action  of  assumpsit,  general  and  special,  see  1  Chitty,  X'-'*    ''t 
Pleading,  16th  Am.  ed.,  *110.  For  the  history  of  the  action  see  Ames,  Lectures 
on  Legal  History,  129-171;  2  Harv.  L.  Rev.  1,  53.  —  Ed. 


A 


86  FORMS    OF   ACTION 

trade,  by  the  execution  of  the  notes  and  deUvery  of  the  engine  and 
boiler,  they  discovered  that  the  defendant  had  knowingly  made 
false  and  fraudulent  representations  to  them  in  regard  to  said 
engine  and  boiler  for  the  purpose  of  misleading  and  deceiving 
them,  and  which  did  mislead  and  deceive  them,  to  t^eir  prejudice, 
and  for  which  they  claim  they  are  entitled  to  r^mathe  contract; 
and  to  this  end  they  offered  to  return  the  engine  and  boiler  to  de- 
fendant, and  demanded  possession  of  the  notes,  and  defendant 
claimed  that  he  had  assigned  the  notes  away,  and  could  not  comply 
with  their  offer. 

The  first  question  that  confronts  us,  is,  does  the  action  of  detinue 
lie  ?  In  order  to  ground  the  action,  these  points  are  necessary: 
(1)  the  plaintiff  must  have  property  in  the  thing  sought  to  be  re- 
covered; (2)  he  must  have  the  right  to  its  immediate  possession; 
(3)  it  must  be  capable  of  identification;  (4)  it  is  essential  that  the 
property  be  of  some  value;  and  (5)  the  defendant  must  have  had 
possession  at  some  time  before  the  institution  of  the  action. 

The  authorities  universally  hold  that  the  action  of  detinue  will 
lie  to  recover  the  possession  of  a  promissory  note.  Some  of  these 
are:  1  Barton's  Law  Pr.  214;  1  Chitty  PI.  (11  Ed.)  121;  Cooper  v. 
Mastin,  73  Ala.  252;  Rob  v.  Cherry,  98  Tenn.  72  (38  S.  W.  412); 
Lewis  V.  Horner,  24  Ky.  500;  19  Am.  Dec.  120;  Robinson  v.  Peter- 
son, 40  111.  App.  132;  Carter  v.  Turner,  37  Tenn.  178. 

But  while  this  action  will  lie  to  recover  the  possession  of  a  prom- 
issory note,  yet  one,  to  maintain  it,  must  bring  himself  within  the 
rule  herein  stated.  As  we  have  seen,  the  plaintiff  must  have 
property  in  the  thing  sought  to  be  recovered,  and  it  must  be  of 
some  value.  Then,  the  pertinent  inquiry  is,  what  property  have 
the  plaintiffs  in  the  notes  sought  to  be  recovered,  and  what  is  their 
value  ?  When  recovered  by  the  plaintiffs,  they  are  of  no  value  to 
them;  it  could  only  be  the  possession  by  them  of  evidence  of  out- 
standing indebtedness.  If  the  theory  of  the  plaintiffs  is  correct, 
that  they  have  the  right  to  rescind,  and  have  rescinded,  the  con- 
tract, the  notes  are  also  of  no  value  to  the  defendant,  he  having 
lost  the  right  to  recover  on  them.  If,  however,  he  has  not  lost  the 
right  to  recover,  he  would  be  in  the  lawful  possession  of  them,  and 
the  plaintiffs'  action  could  not,  for  that  reason,  be  maintained. 

The  plaintiffs  are  deprived  of  nothing  of  value  to  them  by  reason 
of  the  detention  of  the  notes.  It  may  be  claimed  that  the  defend- 
ant may  sue  upon  them;  if  so,  the  plaintiffs  can  make  any  defense 
which  they  may  have.  If  they  have  the  right  to  rescind  the  con- 
tract, they  can  set  this  up  as  a  defense.     Then,  again,  the  notes 


DALTON    V.    FAVOUR  87 

should  have  an  alternative  value.  A  judgment  in  detinue  should 
be  for  the  specific  property,  of  a  specified  value,  so  that,  if  the 
property  cannot  be  had,  its  value  may  be  recovered.  Certainly  a 
judgment  could  not  be  given  for  the  plaintiffs  for  the  face  value  of 
these  notes,  for  they  have  no  such  value  in  them.  Would  they  be 
of  that  value  to  the  plaintiffs,  if  recovered  ?  This  question  must 
be  answered  in  the  negative.  Then,  if  not,  how  could  they  have  a 
judgment  for  the  value  of  a  thing  which  is  valueless  ?  In  the  case 
of  Todd  V.  Crookshanks,  3  Johns.  (N.  Y.),  the  plaintiff  brought  an 
action  to  recover  the  possession  of  a  note  which  he  had  paid,  and 
had  taken  a  receipt,  showing  payment  in  full;  and  the  court, 
speaking  in  this  case,  says:  "  There  was  no  foundation  for  the 
action  below.  After  the  note  was  paid,  a  receipt  in  full  given  by 
one  of  the  payees,  it  was  completely  discharged,  so  as  to  be  of  no 
value." 

For  these  reasons,  the  judgment  of  the  circuit  court  is  reversed, 
the  verdict  of  the  jury  set  aside,  and  the  action  dismissed. 

Reversed} 


I  DALTON  V.   FAVOUR. 
Superior  Court, ^  Judicature  of  New  Hampshire.     1826. 

OiLoU't'*^  fV-t^C^  [Reported  3  New  Hampshire,  465.] 

'.JOl^,  f<7      Trespass]  on  the  case,  for  that  the  said  Favour,  on  the  27th 
ember,  1825,  at  D.,  having  in  his  hands  a  firelock,  highly 
cllarged  with  powder,  and  a  great  quantity  of  wadding,  so  exceed- 
^ingly  carelessly  managed  his  said  firelock,  that  he  discharged  its 
\y    contents  into  the  foot  of  the  plaintiff;  whereby  he  was  put  to  great 
v^  pain,  &c. 

The  cause  was  tried  here,  upon  the  general  issue,  at  November 
term,  1825;  when  it  appeared  in  evidence,  that  the  plaintiff  was 
standing  in  an  entry  of  a  house  in  sight  of  the  defendant,  who  was 
about  six  feet  distant  from  him,  when  the  defendant  discharged 
the  firelock  and  wounded  the  plaintiff  in  his  foot;  but  it  did  not 
appear,  that  the  firelock  was  discharged  with  the  intent  to  injure 
the  plaintiff,  but  the  accident  was  the  consequence  of  great  care- 
lessness. 

'  As  to  the  scope  and  history  of  the  action  of  detinue,  see  Kettle  v.  Bromsall, 
Willes,  118;  Dame  v.  Dame,  43  N.  H.  37;  1  Chitty,  Pleading,  16th  Am.  ed., 
*135;  Ames,  Lectures  on  Legal  History,  71.  —  Ed. 


88  FORMS    OF   ACTION 

Webster,  for  the  defendant,  objected,  that  case  could  not  be  sup- 
ported on  the  facts  proved  in  the  case ;  but  the  court  overruled  the 
objection;  and  the  jury  having  returned  a  verdict  for  the  plaintiff, 
he  moved  the  court  to  grant  a  new  trial,  on  the  same  ground. 

Smiley,  for  the  plaintiff. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 

The  principles,  upon  which  the  decision  of  this  case  must  depend, 
are  well  settled  in  the  books. 

In  all  cases,  where  the  injury  is  done  with  force  and  immediately 
by  the  act  of  the  defendant,  trespass  may  be  maintained.  1 
Chitty's  PI.  122.  —  3  East,  593,  Leame  v.  Bray.  —  19  Johns.  381.  — 
18  ditto,  257,  Percival  v.  Hickey. 

And  in  every  case,  where  the  injury  is  the  immediate  effect  of  the 
defendant's  act,  and  is  stated  in  the  declaration,  or  appears  upon 
the  trial,  to  have  been  wilfully  done,  the  remedy  must  be  trespass. 
1  Chitty's  PL  127.  —  8  D.  &  E.  188,  Ogle  v.  Barnes.  —  6  D.  &  E. 
128.  And  Savignac  v.  Roome,  6  D.  &  E.  125.  —  5  D.  &  E.  648, 
Day  V.  Edwards.  eCStwJvv  {jvpaaXv  ov^il«\M/'cr^  vvv   ' '; 

But  where  the  damage  or  injury  ensues,  not  directly  from  the  act 
of  the  defendant,  the  remedy  must  beTcasV     1  Chitty's  PI.  126. 

In  all  cases,  where  the  injury  is  attributable  to  negligence,  al- 
though it  were  the  immediate  effect  of  the  defendant's  act,  the 
party  injured  has  an  election,  either  to  treat  the  negligence  of  the 
defendant  as  the  cause  of  action,  and  declare  in  case;  or  to  consider 
the  act  itself  as  the  cause  of  the  injury,  and  to  declare  in  trespass. 

1  Chitty's  PI.  127.  —  5  Bos.  &  Puller,  117,  Rogers  v.  Imbleton.  — 
3  Burrows  1560.  —  5  B.  &  P.  447,  note.  —  3  East,  600  and  601.  — 
8  D.  &  E.  188,  Ogle  v.  Barnes.  —  14  Johns.  432,  Bhn  v.  Campbell, 
where  it  was  decided,  that  case  might  be  maintained  for  wounding 
the  plaintiff's  leg,  by  negligently  firing  a  pistol.  1  Bos.  &  Puller 
472,  Turner  v.  Hawkins.  , 

In  the  case  now  before  us,  it  did  not  appear,  that  the  injury  was 
wilfully  done,  but  it  was  the  consequence  of  great  carelessness. 
This  is  an  instance  then,  where  either  trespass  or  case  may  be 
maintained;  and  there  must  be 

Judgment  on  the  verdict.^ 

'  As  to  the  scope  of  the  actions  of  trespass  and  case,  see  Scott  v.  Shepherd, 

2  Bl.  892,  and  the  notes  thereto,  in  Smith's  Leading  Cases,  6th  ed.,  425;  9th 
Am.  cd.,  745;  Leame  th  Bray,  3  East,  593;  1  Chitty,  Pleading,  16th  Am.  ed. 
*140,  *148,  *186. 


SWIFT   V.    MOSELEY 


/     LIENOW  V.   RITCHIE. 
Supreme  Judicial  Court  of  Massachusetts.     1829. 
[Reported  8  Pickering,  235.] 

This  was  an  action  on  the  case  brought  by  the  owner  of  a  house 
for  cutting  away  a  part  of  it  while  it  was  in  the  occupation  of  his 
tenant  for  the  term  of  one  year.  After  a  verdict  for  the  plaintiff, 
it  was  moved  in  arrest  of  judgment,  that  trespass,  and  not  case, 
was  the  proper  form  of  action. 

Per  Curiam.  The  facts  found  show  a  proper  ground  for  an  action 
on  the  case.  The  plaintiff,  not  being  in  actual  possession,  nor 
having  the  right  to  possession  against  his  lessee,  could  not  maintain 
trespass.  Case  is  the  proper  remedy  for  the  landlord,  when  an 
injury  is  done  to  the  inheritance.    — _ — • 

The  case  of  Starr  v.  Jackson  [11  Mass.  520]  affirms  this  doc- 
trine, and  only  decides  that  trespass  77iay  be  maintained  by  the 
landlord  when  the  lessee  is  only  tenant  at  will,  not  that  case,  even 
under  those  circumstances,  would  not  lie. 

Judgment  according  to  verdict.^ 

u3tA^  U      ^J;^*''^^PREME  Court  of  Vermont.     1838.  y^        i   \ 


^^ 


\ 


[Reported  10  Vermont,  20S. 

^ROVER,  [for  two  oxen,  three  cows  and  nine  sheep. 
_lea  —  Not  guilty. 

^  "A-*^'  On  the  trial  of  the  cause  in  the  county  court,  it  appeared  in  evi- 
aQ^^  dence,  that,  in  the  spring  of  1835,  the  plaintiff  leased  a  farm,  lying 
n  in  Bridport  (of  which  he  was  possessed  in  right  of  his  wife),  to- 

gether with  the  above  mentioned  cattle  and  sheep,  to  one  Jirah 
Swift,  for  the  term  of  one  year.     By  the  terms  of  said  lease,  the 

1  Trespass  cannot  be  brought  by  a  lessor  for  life  or  years.  Halligan  v. 
Chicago,  etc.,  R.  R.  Co.,  15  111.  558;  Lawry  v.  Lawry,  88  Me.  482, 34  Atl.  273. 

For  conflicting  views  as  to  the  right  of  a  landlord  when  the  premises  are  in 
the  possession  of  a  tenant  at  will,  see  Hingham  v.  Sprague,  15  Pick.  (Mass.), 
102;  Roussin  v.  Benton,  6  Mo.  592;  Van  Ness  v.  N.  Y.  &  N.  J.  Tel.  Co.,  78 
N.  J.  L.  511,  74  Atl.  456;  Campbell  v.  Arnold,  1  Johns.  (N.  Y.),  511.  See 
Ames,  Lectures  on  Legal  History,  228. 

As  to  the  form  of  action  for  an  injury  to  an  incorporeal  right,  see  Wetmore 
V.  Robinson,  2  Conn.  529;  Wilson  v.  Smith,  10  Wend.  (N.  Y.),  324;  Union 
Petroleum  Co.  v.  Bliven  Petroleum  Co.,  72  Pa.  173.  —  Ed. 


90  FORMS    OF   ACTION 

plaintiff  and  said  Jirah  Swift,  were,  at  the  end  of  the  year,  to  divide 
the  profits  of  the  farm  and  the  increase  of  the  stock,  equally  be- 
tween them,  which  stock  was  to  remain  upon  the  farm  during  the 
year,  unless  sold  or  taken  off  by  the  consent  of  the  plaintiff  and 
said  Jirah  Swift;  —  that  some  time  in  the  month  of  August,  1835, 
the  said  Jirah  Swift  sold  said  cattle  and  sheep  to  the  defendants, 
without  the  consent  of  the  plaintiff,  and  absconded,  and  that  the 
defendants,  immediately  after  making  the  purchase,  drove  the 
cattle  and  sheep  away  from  the  farm.  The  plaintiff  introduced 
testimony  tending  to  prove,  that  the  defendants  knew  that  Jirah 
Swift  had  no  right  to  dispose  of  the  cattle  and  sheep,  and  that  they 
purchased  them  much  under  their  value.  Upon  this  evidence,  the 
county  court  decided,  that  this  action  could  not  be  sustained,  as 
the  plaintiff  brought  the  suit  previous  to  the  termination  of  said 
lease,  by  the  terms  of  which  he  had  parted  with  his  right  of  posses- 
sion of  the  property  in  question,  during  its  continuance,  and 
rendered  a  judgment  for  the  defendants,  to  which  decision  the 
plaintiff  excepted. 

Redfield,  J.  It  seems  to  be  well  settled,  that  the  plaintiff,  in 
trespass  de  bonis  asportatis,  or  trover,  in  order  to  maintain  the 
action,  must  have  had,  at  the  time  of  the  injury  complained  of, 
either  the  actual  custody  of  the  thing  injured  or  taken,  or  a  prop- 
erty in  it,  either  general  or  special,  with  the  right  to  immediate 
possession.  If  he  had  the  actual  custody  of  the  thing,  even  wrong- 
fully, he  may  maintain  the  action  against  every  one,  whose  right 
is  not  superior  to  his.  Perhaps  a  mere  servant  could  not  be  said 
to  have  any  such  custody.  His  possession  is  that  of  the  master. 
The  general  owner  of  a  chattel  may  always  maintain  the  action, 
unless  he  have  parted  with  the  possession,  for  a  "  definite  term." 
Ward  V.  Macauley,  4  T.  R.  489.  Lord  Kenyon  in  that  case  in- 
timates an  opinion,  that  trover  will  lie,  but  in  Gordon  v.  Harper, 
7  T.  R.  12,  it  is  expressly  held,  that  case  is  the  only  remedy  for  an 
injury  done  to  the  thing  bailed,  during  the  continuance  of  the  bail- 
ment. 

In  the  present  case  it  is  contended,  that  the  act  of  the  lessee  or 
bailee,  in  selling  to  the  defendants,  did,  ipso  facto,  determine  his 
right,  and  revive  the  right  of  the  plaintiff  to  immediate  possession. 
If  so,  the  plaintiff  may  maintain  this  action.  It  may  be  well  to 
inquire  what  acts  will  determine  a  bailment  of  this  character. 

It  is  certain  the  act  of  a  mere  stranger  will  not  operate  to  revive 
the  plaintiff's  right  to  immediate  possession.  Any  misuse  or  abuse 
of  the  thing  bailed,  in  the  particular  use  for  which  the  bailment  was 


OXLEY    V.    WATTS  91 

made,  will  not  enable  the  general  owner  to  maintain  trespass  or 
trover  against  the  bailee.  His  only  remedy  is  case.  But  if  the 
thing  be  put  to  a  different  use  from  that  for  which  it  was  bailed, 
by  the  consent  of  the  bailee,  we  think  the  bailor  may  maintain 
trespass  or  trover. 

It  has  been  long  settled  that  if  the  bailee  kill  or  destroy  the  thing 
bailed,  trespass  or  trover  will  lie.  Coke's  In.  a.  53.  It  was  early 
held,  too,  that  the  interest  of  the  tenant  in  standing  trees  was  so 
far  determined  by  their  being  severed  from  the  freehold,  that  the 
landlord  might  maintain  trespass. 

In  the  case  of  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826,  found  ■ 
in  the  7th  Com.  Law  R.  it  was  held  that  machinery,  leased  and  by  '  ^*^^'' 
the  lessee  severed  from  the  freehold,  became  instdnief;.  re-yested  in 
the  lessor,  and  he  might  maintain  trover  even  during  the  continu- 
ance of  the  term.  The  case  is  expressly  put  by  the  court  upon  the 
ground,  that  the  lessee,  by  his  wTongful  act,  forfeits  his  right,  and 
thus  "  puts  an  end  to  his  qualified  possession."  If  so  in  that  case, 
much  more  in  this,  where  the  bailee  sells  the  property.  The  same 
doctrine  here  decided  is  held  in  the  case  of  Sanborn  v.  Coleman,  6 
N.  H.  R.  14. 

The  judgment  of  the  County  Court  is  reversed  and  a  new  trial 
granted.^ 


I     OXLEY  t^.   WATTS. 

King's  Bench.     1785. 

[Reported  1  Term  Reports,  12.1 

This  was  an  action  of  trespass  for  taking  a  horse,  tried  before 
Lord  Mansfield,  at  the  last  Summer  Assizes,  at  Maidstone. 

The  defendant,  as  bailiff  of  Lord  Dartmouth,  lord  of  the  manor    - 
J    of  A. Jugiififid  taking  the  said  horse  as  anr^stray.]  /^Xhjx^    L<^i^tM.CUy%*^ 
t/|t.A^  0      Replication^'  that  after  the  taking  mentioned  in  the  declaration,  /  /rvUX-vCc^ 

»  -    l^  J^ 

*  As' to  the  right  to  bring  trover,  see  Gordon  ?;.  Harper,  7  T.  R.  9;   Bryant 

.   u\jo  ^-  Wardell,  2  Exch.  479;  Ames  v.  Pahner,  42  Me.  197;  United  Shoe  Machin- 

fj^  ery  Co.  v.  Holt,  185  Mass.  97,  69  N.  E.  1056.      See  also  1  Chitty,  Pleading, 

I     ■  16th  Am.  ed.,  *163;  Ames,  Lectures  on  Legal  History,  80. 
JL  •^  As  to  the  right  to  bring  trespass,  see  Lotan  v.  Cross,  2  Camp.  464;  Ward  v. 

.     j^  Macauley,  4  T.  R.  489;  Forbes  v.  Parker,  16  Pick.  (Mass.),  462;  Gay  v.  Smith, 

|J/^  38  N.  H.  171.      See  also  1  Chitty,  Pleading,  16th  Am.  ed.,  *188;   Ames,  Lec- 
tures on  Legal  History,  56.  —  Ed.  /  /7 


^' 


f 


92  FORMS    OF   ACTION 

the  defendant  worked  the  said  horse,  and  so  became  a  trespasser 
ab  initio. 

Erskine  now  moved  to  set  aside  the  verdict  which  had  been  ob- 
tained by  the  plaintiff,  on  the  ground  that  this  should  have  been 
an  action  on  the  case  for  the  consequential  damage,  and  not  an 
action  of  trespass,  because  the  original  taking  was  admitted  to  be 
la^vful. 

But  per  Curiam,  The  subsequent  usage  is  an  aggravation  of  the 
trespass  in  taldng  the  horse;  for  the  using  made  him  a  trespasser 
ah  initio.  ,  _  Rule  refused} 


/     GALLOWAY   v.   BIRD  and  Another. 
Court  of  Common  Pleas.     1827. 

[Reported  4  Bingham,  299.] 

Replevin  for  taking  and  unjustly  detaining  Plaintiff's  goods.  The 
goods  had  been  delivered  by  one  Bache  to  the  Defendants,  who 
were  carriers  and  lightermen,  consigned  to  the  Plaintiff,  and  the 
Defendants  refused  to  deliver  the  goods  to  the  Plaintiff.^ 

Best,  C.  J.,  now  delivered  the  judgment  of  the  Court.  This 
was  an  action  of  replevin,  but  the  goods  which  were  replevied  had 
been  delivered  to  the  avowants  upon  a  contract.  The  authorities 
all  lay  it  down  that  replevin  can  only  be  maintained  where  goods 
are  taken,  not  where  they  are  delivered  upon  a  contract;  and  this 
is  clear  also  upon  the  form  of  pleading,  which  always  is  that  the 
defendant  'Hook  and  detained"  the  goods;  the  plea  to  which 
allegation  is,  non  cepit.  No  instance  can  be  found  in  the  Digests 
or  Abridgments  of  replevin  having  been  brought  upon  a  delivery 
(^ under  a  contract.  Our  judgment  therefore  must  be  for  the  De- 
fendants. Judgment  for  the  Defendants  accordingly.^ 

1  See  The  Six  Carpenters'  Case,  8  Co.  146a,  and  the  notes  thereto  in  Smith's 
Leading  Cases,  9th  Am.  ed.,  265.  —  Ed. 

2  The  statement  of  facts  is  abridged.  —  Ed. 

'  Woodward  v.  Grand  Trunk  Ry.  Co.,  46  N.  H.  524,  accord.  Baker  v.  Fales, 
16  Mass.  147;  Stoughton  v.  Rappallo,  3  Serg.  &  R.  (Pa.),  559,  contra. 

By  statute  in  many  states  the  action  of  replevin  has  been  extended  to  cover 
wrongful  detention.  See  Burrage  v.  Melson,  48  Miss.  237;  Kittredge  v.  Holt, 
55  N.  H.  621;  Ames,  Lectures  on  Legal  History,  70.  —  Ed. 


MITCHELL   V.    ROBERTS  93 

/L     MITCHELL  v.   ROBERTS. 
Supreme  Judicial  Court  of  New  Hampshire.     1871. 

[Reported  50  New  Hampshire,  486.] 

Replevin,  by  Grenville  A.  Mitchell  &  a.  against  Moses  Roberts, 
for  one  horse,  sleigh,  harness,  whip,  and  buffalo  robe.  Plea,  non 
cepit,  with  a  brief  statement  setting  forth  a  seizure  of  the  property 
by  one  Willis,  a  deputy  sheriff,  upon  an  execution  in  favor  of  the 
defendant  against  one  Gordon;  an  advertisement  of  it  to  be  sold 
at  auction  by  the  officer,  and  the  taking  it  out  of  his  possession  on 
the  day  appointed  for  the  sale  by  virtue  of  this  writ  of  replevin,  by 
means  of  which  the  sale  was  prevented;  and  alleging  that  the  goods 
were  the  property  of  said  Gordon,  or  Gordon  &  Mitchell,  and  not 
of  the  plaintiff. 

Upon  the  trial  by  the  court,  it  appeared  that  upon  an  execution 
issued  on  a  judgment  in  favor  of  said  Roberts  against  said  Gordon, 
this  property  was  seized  by  said  deputy  sheriff  as  the  property  of 
said  Gordon,  at  a  hotel  where  it  then  was,  and  that  he  duly  adver- 
tised it  for  sale  by  auction;  that  the  sale  was  twice  adjourned,  the 
property  in  the  mean  time  being  kept  at  said  hotel  stable,  under  the 
control  of  the  officer,  and  that  it  was  taken  from  his  custody  by 
virtue  of  this  writ  of  replevin,  on  the  day  appointed  for  the  sale, 
and  before  the  time  fixed  for  it. 

It  appeared,  also,  that  the  defendant  directed  the  officer  to  seize 
the  property  upon  the  execution,  and  that  at  the  time  it  was  re- 
plevied it  was  in  the  custody  of  the  deputy  sheriff  under  said  exe- 
cution. Upon  this  evidence,  the  court  found  that  the  defendant 
did  not  take  said  goods  and  chattels,  or  any  part  thereof,  in  manner 
and  form  as  the  plaintiff  in  his  declaration  had  alleged;  to  which 
finding  the  plaintiff  excepted. 

Foster,  J.  The  case  finds  that  the  property  was  taken  by  a 
deputy  sheriff  upon  an  execution  in  favor  of  the  defendant  against 
one  Gordon,  and  that,  until  taken  from  his  custody  by  virtue  of 
the  writ  of  replevin,  the  property  remained  under  the  officer's  con- 
trol. The  defendant  never  had  actual  possession  of  the  property, 
nor  constructive  possession,  unless  the  officer  is  to  be  regarded  as 
his  agent,  he  having  been  directed  by  the  defendant  to  seize  the 
property  upon  the  execution. 

_JlepIevin  is  strictly  a  possessory  action:  that  is,  as  expressed  by 
Blackstone,  2  Com.  198,  "  such  wherein  the  right  of  possession  only, 
and  not  of  property,  is  contested."     And  it  lies  only  in  behalf  of  one 


94  FORMS    OF   ACTION 

entitled  to  possession,  against  one  having,  at  the  time  the  suit  is 
begun,  actual  or  constructive  possession  and  control  of  the  property. 
Brockway  v.  Burnap,  12  Barb.  347;  King  v.  Orser,  4  Duer  431; 
Roberts  v.  Randel,  3  Sandf.  707;  Knapp  v.  Smith,  27  N.  Y.  281; 
Richardson  v.  Reed,  4  Gray  442;  Coffin  v.  Gephart,  18  Iowa  256. 
It  is  a  proceeding  in  rem,  wherein  the  plaintiff  seeks  to  recover 
the  thing  detained  in  specie,  and  not,  as  in  trespass  or  trover, 
damages  for  its  detention. 

The  actual  possession  of  the  officer  is  not  the  constructive  pos- 
session of  the  defendant,  although  the  execution  in  the  officer's 
hands  was  levied  upon  this  property  by  the  direction  of  the  de- 
fendant; but,  until  the  property  passed  out  of  the  officer's  control 
by  sale  upon  the  execution  or  other  legal  means,  it  remained  in  the 
custody  of  the  law,  and  in  no  way  subject  to  the  defendant's  con- 
trol, who,  by  virtue  of  his  judgment  and  execution,  acquired  no 
title  whatever  to  the  property,  nor  any  right  of  custody  thereof, 
but  only  an  inchoate  right  to  payment  out  of  its  avails,  by  legal 
proceedings  under  and  by  virtue  of  the  execution.  Gallagher  v. 
Bishop,  15  Wis.  282;  Ilsley  v.  Stubbs,  5  Mass.  283;  Booth  v.  Able- 
man,  16  Wis.  460;  Smith  v.  Orser,  43  Barb.  187;  Repine  v.  Mc- 
Pherson,  2  Kan.  340;  Willard  v.  Kimball,  10  Allen,  211. 

The  right  to  the  writ  while  the  goods  are  in  the  custody  of  the 
law,  or  of  a  sheriff,  collector  of  taxes,  or  other  officer  acting  under 
authority  of  the  State,  is  denied  by  statute  in  Pennsylvania  and 
if  New  York.     Morris  on  Replevin,  83,  113,  114. 

"  The  writ  of  replevin,"  says  Metcalf,  J.,  in  Richardson  v.  Reed, 

4  Gray,  442,  "  assumes  that  the  goods  which  are  to  be  replevied 

_ij  'A^^y-  "--      have  been  taken,  detained,  or  attached  by  the  defendant,  and  are 

i-Tflj^      in  his  possession  or  under  his  control;  and  it  directs  that  they  shall 

^^-'^\    I     J  /      be  replevied  and  delivered  to  the  plaintiff,  provided  he  shall  give 

"*  '   "  bond,  conditioned,  among  other  things,  to  restore  and  return  the 

same  goods  to  the  defendant  and  pay  him  damages,  if  such  shall  be 

the  final  judgment  in  the  action.     But  attached  goods  are  in  the 

legal  custody  and  possession  of  the  officer  only.      The  attaching 

creditor  has  no  property  in  them,  general  or  special;  no  right  to  the 

possession  of  them;   and  no  right  of  action  against  a  third  person 

who  may  take  them  from  the  officer  or  destroy  them.      Ladd  v. 

North,  2  Mass.  516. 

And  even  if,  in  any  sense,  the  possession  of  the  officer  could  be 
regarded  as  the  possession  of  the  defendant,  still  this  action  could 
not  be  maintained.  It  is  well  settkni  in  this  State  that  replevin 
will  not  lie  against  an  officer  for  goods  taken  on  execution  from  the 


MITCHELL   V.    ROBERTS  95 

possession  of  the  judgment  debtor.  Kellogg  v.  Churchill,  2  N.  H, 
412;  Smith  v.  Huntington,  3  N.  H.  76;  Melcher  v.  Lamprey,  20 
N.  H.  403;  Sanborn  v.  Leavitt,  43  N.  H.  473;  Hilliard  on  Remedies 
for  Torts,  29. 

Therefore  it  was  once  held  that  the  recaption  by  process  of  re- 
plevin, of  goods  taken  bj^  an  officer  on  execution,  should  be  re- 
garded as  contempt  of  the  court  issuing  the  execution  —  Winnard 
V.  Foster,  2  Lutw.  1190;  and  in  Rex  v.  Monkhouse,  2  Strange,  1184, 
the  court  granted  an  attachment  against  the  under-sheriff  of  Cum- 
berland, for  granting  a  replevin  of  goods distrained^  on  a  conviction 
for  deer-stealing.  -    ju6^c*.4>  *«  /a-«.'e>•-«>^.-»-ZL  yS^n^  •  aCc^-f- 

Our  statute,  authorizing  replevin  against  the  officer  for  goods 
attached  upon  mesne  process,  does  not,  of  course,  apply  to  this 
case;  but  the  common  law  rule  prevails,  with  this  statutory  ex- 
ception, that  goods  in  the  custody  of  the  law  cannot  be  replevied.       -(^tAJW  Z« 

It  was  formerly  held,  in  one  or  two  New  York  cases,  that  replevin  ,     , 

might  be  maintained  against  the  judgment  creditor  under  whose  ^'tA-^-O''*^ 
direction  the  officer  took  the  goods,  on  the  ground  that,  as  both  the 
officer  and  creditor  were  trespassers,  replevin  would  lie  against 
either  of  them,  because  it  would  lie  wherever  trespass  de  bonis 
asportatis  would.  Allen  v.  Crary,  10  Wend.  349;  Stewart  v.  Wells, 
6  Barb.  79.  But  this  doctrine,  utterly  inconsistent  as  it  is  with  the 
theory  which  regards  the  possession  of  an  officer  of  the  court  as  the 
possession  and  custody  of  the  law,  has  been  long  since  exploded  in 
the  only  State  where,  so  far  as  I  can  ascertain,  it  ever  temporarily 
prevailed.  And  it  is  now  held  that  this  doctrine,  and  the  dictum 
of  Cowen,  J.,  in  Cary  v.  Hotailing,  1  Hill,  311,  that  trespass  and 
replevin  are  concurrent  remedies,  must  be  taken  with  the  quaHfica- 
tion  that  the  defendant  is  in  possession  when  the  action  is  brought. 
Brockwa}^  v.  Burnap,  before  cited. 

It  is  undoubtedly  true,  that  at  common  law  replevin  will  not  lie 
where  trespass  cannot  be  maintained;  for  by  that  law  an  unlawful 
taking  of  goods  is  a  prerequisite  to  the  maintenance  of  replevin. 
Richardson  v.  Reed,  before  cited.  But  it  does  not  follow  that  tres- 
pass will  not  lie  in  many  cases  where  replevin  will  not.  Trespass 
will  lie  against  the  ^vrongful  taker  of  goods,  whether  he  has  parted 
with  the  possession  of  them  or  not ;  but  replevin  will  in  no  case  lie 
against  one  who  has  transferred  his  possession  to  another. 

The  plaintiff's  exception  to  the  finding  of  the  court,  therefore,  is 
overruled. 

It  remains  to  consider  whether  the  defendant  is  entitled  to  judg- 
ment for  damages.     By  the  common  law,  if  the  plaintiff  in  replevin 


.9..4..4'^ud.<.-(/%n   P"*<-5r  '  ^C<!!3l^ 


96  FORMS    OF   ACTION 

did  not  prevail  in  his  suit,  the  defendant  had  judgment  for  a  return 
of  the  property;  and  by  the  Statute  of  Westminster,  2  c.  2,  the 
sheriff  executing  the  Avrit  of  replevin  was  required  to  take  pledges, 
not  only  for  prosecuting  the  suit,  but  for  a  return  of  the  property  if 
a  return  should  be  adjudged.  But  neither  the  common  law,  in  this 
respect,  nor  the  statute  of  Westminster,  ever  prevailed  in  this 
State,  —  instead  of  which,  by  our  practice,  a  judgment  for  the 
defendant  for  damages  in  the  same  suit  (by  which  anomalous  pro- 
ceeding the  defendant  becomes  the  actor  or  plaintiff)  is  the  proper 
judgment.     Bell  v.  Bartlett,  7  N.  H.  178. 

The  process  de  retorno  habendo  prevails  in  Massachusetts,  and  is 
secured  by  the  replevin  bond.  But  the  pertinent  inquiry  of  Mr. 
Justice  Metcalf,  in  Richardson  v.  Reed,  is  at  once  suggested  by  the 
peculiar  aspect  of  this  case:  "  How  can  the  goods  be  returned,  on  a 
writ  de  retorno  habendo,  to  him  who  never  had  possession  of  them 
nor  the  right  of  possession  ?  Or  how  can  he  be  entitled  to  damages 
for  the  taking  and  detaining  of  goods  in  which  he  had  no  prop- 
erty ?  " 

The  plea  of  non  cepit  admits  the  property  to  be  in  the  plaintiff; 
and,  of  course,  on  that  plea  the  defendant  cannot  have  judgment 
for  damages.     Johnson  v.  Wollyer,  1  Strange,  507. 

The  defendant  will  have  Judgment  for  his  costs} 


/    MURPHY  V.   BOLGER  BROTHERS. 

Supreme  Court  of  Vermont.     1888. 

[Reported  60  Vermont,  723.] 

EYectment  in  common  form.  Plea,  general  issue.  Trial  by 
court,  March  Term,  1886,  Ross,  J.,  presiding.  Judgment  for  the 
plaintiff  to  recover  of  the  defendants  the  seisin  ^and  peaceable  pos- 
session of  the  premises  and  one  cent  damages  and  costs. 

1  As  to  the  necessity  of  possession  by  the  defendant  at  the  time  the  action 
is  brought,  see  Ramsdell  v.  Buswell,  54  Me.  546;  Calnan  v.  Stern,  153  Mass. 
413,  26  N.  E.  994;  Gildas  v.  Crosby,  61  Mich.  413,  28  N.  W.  153;  House  v. 
Turner,  106  Mich.  240,  64  W.  N.  20.  Compare  Ames  v.  Mississippi  Boom  Co., 
8  Minn.  467. 

As  to  the  right  to  repk'vy  property  in  the  hands  of  a  public  officer,  see 
Simpson  v.  St.  John,  93  N.  Y.  363  (pohce  clerk);  Cobbey,  Replevin,  2d  ed., 
Ch.  13;  Wells,  Replevin,  2d  ed.,  Ch.  11. 

As  to  the  general  scope  of  the  action  of  replevin  at  common  law,  see  1 
Chitty,  Pleading,  16th  Am.  ed.,  *181.  —  Ed. 


MURPHY    V.    BOLGER   BROTHERS  97 

The  plaintiff  and  the  defendants  were  adjoining  lando'WTiers,  and 
there  was  a  dispute  between  them  as  to  the  exact  location  of  their 
division  line.  The  defendants'  land  was  described  by  courses  and 
distances,  and  its  east  line  was  controlled  by  the  east  line  of  a  store 
building  standing  upon  it.  The  plaintiff's  land  was  simply 
bounded  by  the  defendants'.  The  plaintiff  did  not  claim  that  the 
defendants  had  invaded  his  property  upon  the  land  itself,  but  did 
claim  that  they,  in  changing  the  location  and  making  repairs  of 
tlieir  buildings,  had  projected  the  side  of  a  roof  on  a  barn  and  on  a 
shed,  some  sixteen  feet  from  the  ground,  over  the  division  line  and 
over  the  land  of  the  plaintiff.  Both  parties  had  caused  accurate 
surveys  to  be  made,  and  they  only  differed  in  that  one  surveyor, 
who  fixed  the  line  for  the  defendants,  located  his  line  from  the  side 
of  the  old  store  building,  while  the  survej^or  for  the  plaintiff  located 
his  by  the  foundation  walls  of  the  same  building.  The  court  found 
that  the  survey  made  for  the  defendants  was  of  the  correct  line, 
but  that  the  projection  of  the  side  of  said  roof,  as  the  same  was 
built  by  the  defendants,  did  extend  over  said  division  line  and 
slightly  over  the  land  of  the  plaintiff. 

After  this  suit  was  commenced,  and  after  the  survej^s  had  been 
made,  but  before  the  trial,  the  defendants  had  cut  away  the  entire 
projection  of  the  roof  of  their  buildings,  so  that  at  the  time  of  trial 
no  part  of  said  buildings  came  to  the  line,  but  said  buildings  were 
entirely  upon  lands  of  the  defendants. 

Tyler,  J.  The  question  in  this  case  is  whether  the  plaintiff  can 
maintain  the  action  of  ejectment,  or  should  have  resorted  to  an 
action  on  the  case  as  for  a  nuisance. 

This  action,  which  was  originally  employed  in  England  to  enable 
the  lessee  of  lands,  who  had  been  ejected  therefrom  during  his  term, 
to  recover  damages  therefor,  was  subsequently  enlarged  to  enable 
him  also  to  recover  possession  of  the  land.  In  later  years  it  has 
been  used  both  in  England  and  in  this  country  to  try  questions  in- 
volving the  title  to  real  estate.  Under  our  statute,  sec.  1247,  R.  L., 
a  person  having  claim  to  the  seisin  or  possession  of  lands,  tene- 
ments or  hereditaments,  is  entitled  to  an  action  by  ^^Tit  of  eject- 
ment, and  if  he  recover  judgment  it  shall  be  for  his  damages  and 
the  seisin  and  possession  of  his  lands. 

Chitty,  vol.  1,  page  188,  defines  the  action  as  sustainable  for  the 
recovery  of  the  possession  of  property  upon  which  an  entry  might 
in  point  of  fact  be  made,  and  of  which  the  sheriff  could  delivef 
actual  possession,  and  as  not  in  general  sustainable  for  the  recovery 
of  property  which  is  not  tangible. 


%jA- 


98  FORMS    OF   ACTION  ,  ,  „ 

Tyler  on  Ejectment  says,  page  37,  that  by  the  common  law  and 
the  general  rule,  ejectment  will  not  lie  for  anything  whereon  an 
entry  cannot  be  made,  or  of  which  the  sheriff  cannot  deliver  pos- 
session; that  it  is  only  maintainable  for  corporeal  hereditaments; 
that  anything  attached  to  the  soil,  of  which  the  sheriff  can  deliver 
possession,  may  be  recovered  in  this  action. 

The  action  of  ejectment  will  lie  whenever  a  right  of  entry  exists, 
and  the  interest  is  of  such  a  character  that  it  can  be  held  and  en- 
joyed, and  possession  thereof  delivered  in  execution  of  a  judgment 
for  its  recovery.  Rowan  v.  Kelsey,  18  Barb.  484;  Japkson  v.  Buel, 
9  Johns.  298. 

The  precise  question  in  the  case  at  bar  is  whether  the  projection 
of  the  side  of  defendants'  roof  over  plaintiff's  land  and  sixteen  feet 
above  it  was  an  ouster  of  plaintiff's  possession  of  his  land,  or  a  mere 
intrusion  upon,  and  interference  with,  a  right  incident  to  his  en- 
joyment of  the  land. 

Blackstone,  book  2,  page  18,  says:  "  Land  hath  also,  in  its  legal 
signification,  an  indefinite  extent  upwards  as  well  as  downwards  "; 
..."  the  word  *  land  '  includes  not  only  the  face  of  the  earth, 
but  everything  under  it  or  over  it." 

Defendants'  counsel  insists  that  this  action  cannot  be  main- 
tained because  there  was  no  intrusion  upon  the  plaintiff's  soil,  but 
upon  the  air  or  space  above  it,  while  plaintiff's  counsel  claims  the 
rule  to  be  that  the  action  will  lie  provided  the  intrusion  extends 
over  the  line  of  plaintiff's  premises,  no  matter  how  slight  it  is  nor 
how  far  above  the  soil. 

If  the  defendants  had  constructed  their  barn  so  that  the  founda- 
tion wall  and  the  building  itself  had  been  wholly  or  in  part  over  the 
line  upon  plaintiff's  land,  there  could  have  been  no  question  as  to 
the  plaintiff's  right  to  maintain  ejectment.  But  suppose  they  had 
built  their  foundation  wall  strictly  upon  their  own  land,  but  close 
to  the  line,  and  had  projected  the  entire  side  of  the  building  itself  a 
few  inches  over  the  Hne  and  above  the  plaintiff's  land,  could  the 
plaintiff  maintain  ejectment  for  the  intrusion  ?  If  not,  it  would 
be  because  the  intrusion  was  not  upon  the  land  itself  but  the  space 
above  it.  If  he  could  not  maintain  ejectment,  he  would  be  obliged 
to  submit  to  the  invasion  and  only  have  his  damages  therefor.  But 
the  law  says  the  land  is  his  even  to  the  sky,  and  therefore  he  has  a 
right  to  it,  and  should  not  be  compelled  to  part  with  any  portion  of 
it  upon  the  mere  payment  of  damages  by  the  trespasser.  A  case 
can  readily  be  conceived  where  the  projection  of  the  side  of  a  build- 
ing, or  even  of  bay  windows,  by  one  party  over  land  of  another 


MURPHY    V.    BOLGER    BROTHERS  99 

would  be  of  so  great  inconvemence  and  injury  to  the  latter  that  a 
judgment  for  damages  would  afford  no  adequate  compensation. 

But  to  carry  the  illustration  one  step  further.  One  owner  of  a 
party  or  division  wall  places  upon  the  top  thereof  a  cornice  about 
two  and  a  half  inches  wide,  which  projects  over  the  lot  of  the  ad- 
joining owner.  Can  the  latter  maintain  ejectment  ?  It  was  held 
in  Vrooman  v.  Jackson,  6  Hun,  326,  that  he  could  not.  It  was  also 
held  in  Aiken  v.  Benedict,  39  Barb.  400,  that  where  one  erects  a 
building  upon  the  line  of  his  premises  so  that  the  eaves  or  gutters 
project  over  the  land  of  his  neighbor,  ejectment  would  not  lie;  that 
an  action  for  a  nuisance  was  the  proper  remedy,"  the  court  in  that 
case  dissenting  from  the  doctrine  of  Sherry  v.  Frecking,  4  Duer,  452. 

A  similar  case  to  the  one  last  cited  is  that  of  Stedman  v.  Smith, 
92  Eng.  Com.  Law,  1.  There  the  plaintiff  and  defendant  occupied 
adjacent  plots  of  ground,  divided  by  a  wall  of  which  they  were  the 
owners  in  common.  There  was  a  shed  in  defendant's  ground  con- 
tiguous to  the  wall,  the  roof  of  which  rested  on  the  top  of  the  wall 
across  its  whole  width.  Defendant  took  the  coping  stones  off  the 
top  of  the  wall,  heightened  the  wall,  replaced  the  coping  stones  on 
the  top,  and  built  a  wash-house  contiguous  to  the  wall  where  the 
shed  had  stood,  the  roof  of  the  wash-house  occupying  the  whole 
width  of  the  top  of  the  wall;  and  he  let  a  stone  into  the  wall  with 
an  inscription  on  it  stating  that  the  wall  and  the  land  on  which  it 
stood  belonged  to  him.  It  was  held  that  on  these  facts  a  jury 
might  find  an  actual  ouster  by  defendant  of  plaintiff  from  the  pos- 
session of  the  wall,  which  would  constitute  a  trespass  upon  which 
plaintiff  might  maintain  an  action  against  defendant.  This  case 
is  in  point  as  showing  a  disseisin  of  the  plaintiff's  possession  rather 
than  a  mere  infringement  of  a  right. 

In  McCourt  v.  Eckstein,  22  Wis.  153,  it  was  held  that  where 
some  of  the  stones  of  defendant's  foundation  wall  projected  eight 
inches  over  plaintiff's  land,  the  plaintiff  might  treat  this  as  a  dissei- 
sin rather  than  a  trespass,  and  might  maintain  ejectment. 

It  clearly  is  not  essential  that  the  intruding  object  should  actu- 
ally rest  upon  the  plaintiff's  soil  to  entitle  him  to  the  action  of 
ejectment,  for  this  action  will  lie  for  an  upper  room  in  a  dwelling- 
house  or  other  building. 

As  the  law  gives  the  owner  of  the  land  all  above  it  within  its 
boundaries,  we  can  find  no  reason,  resting  in  principle,  why,  for  the 
projection  by  one  party  of  a  portion  of  his  building  over  the  land  of 
another,  as  in  this  case,  he  may  not  be  hable  in  ejectment.  The 
plaintiff  was  disseised  of  his  land,  and  the  defendant  was  in  the 


100  FORMS    OF   ACTION 

wrongful  possession  thereof  by  his  projecting  roof.  Chamberlin  v. 
Donahue,  41  Vt.  306.  There  is  no  more  difficulty  in  describing  in 
a  declaration  a  projection  above  the  soil  than  one  upon  it,  nor  can 
there  be  any  difficulty  in  the  sheriff  delivering  possession  to  the 
plaintiff.  No  question  was  raised  in  the  court  below  as  to  the 
sufficiency  of  the  declaration. 

The  judgment  of  that  court  is  affirmed} 


Section  II. 

Actions  under  Modern  Codes  and  Practice  Acts. 

[Rules  of  the  Supreme  Court,  1883  (England),  Order  I,  Rule  1.] 

All  actions  which,  previously  to  the  commencement  of  the  Prin- 
cipal Act,  were  commenced  by  writ  in  the  Superior  Courts  of  Com- 
mon Law  at  Westminster,  or  in  the  Court  of  Common  Pleas  at 
Lancaster,  or  in  the  Court  of  Pleas  at  Durham,  and  all  suits  which, 
previously  to  the  commencement  of  the  Principal  Act,  were  com- 
menced by  bill  or  information  in  the  High  Court  of  Chancery,  or 
by  a  cause  in  rem  or  in  personam  in  the  High  Court  of  Admiralty, 
or  by  citation  or  otherwise  in  the  Court  of  Probate,  shall  be  in- 
stituted in  the  High  Court  of  Justice  by  a  proceeding  to  be  called 
an  action. 

[New  York  Code  of  Civil  Procedure,  Section  3339.] 

There  is  only  one  form  of  civil  action.  The  distinction  between 
actions  at  law  and  suits  in  equity,  and  the  forms  of  those  actions 
and  suits,  have  been  abolished. 

[Massachusetts  Revised  Laws,  Chapter  173,  Section  1.] 

There  shall  be  only  three  divisions  of  personal  actions:  — 

First,  Contract,  which  shall  include  actions  formerly  known  as 
assumpsit,  covenant  and  debt,  except  actions  for  penalties. 

Second,  Tort,  which  shall  include  actions  formerly  known  as 
trespass,  trespass  on  the  case,  trover  and  actions  for  penalties. 

Third,  Replevin. 

1  As  to  the  scope  of  the  action  of  ejectment,  see  1  Chitty,  Pleading,  16th 
Am.  ed.,  *209.  —  Ed. 


/),t..,.^fr*-*^*^«^  .,..w_-^  aMMpL>  -ii^u^t^t^^ 


BARNES   V.    QUIGLEY  101 

^    BARNES  V.   QUIGLEY. 
Court  of  Appeals  of  New  York.     1874. 

[Reported  59  New  York,  265.]  !,       ^  '^ 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 


\ 


1  ^• 


favor  of  plaintiff,  entered  upon  a  verdict,  and  affirming  an  order  V^  , 

denying  a  motion  for  a  new  trial.  v. 5*^ 

The  complaint  in  this  action,  in  substance,  alleged,  that  on  the  H%^ 
3d  day  of  April,  1871,  plaintiff  was  the  owner  of  a  promissory  note 
made  by  defendant,  payable  to  the  order  of  Britton  &  Co.,  for 
$2,165.86;  which  was  indorsed  by  the  payees  and  transferred  to 
plaintiff  before  paturity;  that  prior  to  its  maturity  the  payees 
failed  and  made  an  assignment;  that  on  or  about  the  day  men- 
tioned, defendant,  for  the  purpose  of  deceiving  plaintiff  and  in- 
ducing him  to  surrender  up  the  note  for  a  less  sum  than  was  due 
thereon,  falsely  and  fraudulently  represented  that  the  note  was 
made  by  him  solely  for  the  accommodation  of  the  payees,  he  re- 
ceiving no  consideration  whatever  therefor,  and  that  all  moneys 
paid  by  him  upon  the  note  would  be  an  entire  loss,  whereas  the  note 
was  in  fact  for  merchandise  sold  by  the  payees  to  defendant,  and 
that  he  received  full  value  for  the  note.  That  plaintiff  relying  upon 
said  representations,  and  being  ignorant  of  the  facts,  was  induced 
thereby  and  did  accept  $582.70  less  than  the  amount  due,  and  sur- 
rendered up  the  note. 

That  by  reason  of  the  premises  said  plaintiff  has  been  deceived 
and  defrauded  by  said  defendant  out  of  said  sum  of  $582.70,  and 
has  sustained  damage  to  that  amount. 

Defendant's  answer  admitted  the  allegations  of  the  complaint 
as  to  the  making,  indorsement  and  transfer  of  the  note,  the  failure 
of  the  payees,  and  that  he  paid  the  sum  of  $1,600  in  full  settlement 
of  the  note,  which  was  surrendered  up  to  him.  He  denied  all  the 
other  allegations  of  the  complaint.  On  the  trial  plaintiff  moved 
for  judgment  on  the  pleadings,  which  motion  was  granted^_and. 
directed  a  verdict  for  the  balance  unpaid  on  the  note,  to  which  de- 
fendant's counsel  duly  excepted. 

Allen,  J.  The  complaint  is  for  fraud,  and  not  upon  contract. 
Whether  the  facts  stated  constitute  a  cause  of  action  is  not  mate- 
rial. The  whole  frame-work  is  in  fraud,  and  the  cause  of  action, 
as  set  forth,  is  based  upon  the  false  and  fraudulent  representations 
of  the  defendant,  by  which  the  plaintiff  was  induced  to  surrender 


102  FORMS    OF    ACTION 

and  give  up  to  the  defendant  his  promissory  note,  held  and  owned 
by  the  plaintiff,  for  an  insufficient  consideration,  an  amount  con- 
siderably less  than  its  face,  by  reason  whereof,  as  alleged,  the 
"  plaintiff  has  been  deceived  and  defrauded  out  of  said  sum  of 
$582.70,  and  has  sustained  damage  to  that  amount." 

The  theory  of  the  plaintiff  at  the  commencement  of  the  action, 
and  the  foundation  of  his  claim  as  formally  made  in  his  complaint, 
was,  that  a  surrender  of  the  note  upon  the  receipt  of  an  agreed  sum, 
less  than  the  amount  actually  due  in  satisfaction  for  the  full  sum, 
was  equivalent  to  a  release  under  seal,  and  effectually  discharged 
the  debt.  In  that  view  he  could  only  recover  by  impeaching,_ 
the  release  and  discharge,  for  fraud,  and  he  framed  his  con> 
plaint  to  meet  the  case  in  that  form.  His  whole  cause  of  action 
rested  upon  the  alleged  fraud,  and  it  was  an  entire  change  of  that 
cause,  and  a  surprise  upon  the  defendant,  when  this  view  was 
ignored  by  the  counsel  and  the  court  at  the  trial,  and  a  verdict 
ordered  upon  a  denial  in  the  answer  of  the  only  material  allegations 
of  the  complaint.  We  are  not  to  speculate  upon  the  question_ 
whether  the  surrender  of  the  note  did  discharge  the  obligatiom 
The  plaintiff  assumed  that  it  did,  and  brought  his  action  to  recover 
for  the  fraud  by  which  the  discharge  was  procured.  It  was  error 
in  the  court  to  change  the  form  of  the  action,  by  striking  out  or 
treating  as  surplusage  the  principal  allegations  —  those  which 
characterize  and  give  form  to  the  action  —  because,  perchance, 
there  may  be  facts  stated  by  way  of  inducement  spelled  out,  which 
would,  when  put  in  proper  form,  have  sustained  an  action  of  as- 
sumpsit. 

The  defendant  was  called  upon  to  answer  the  allegations  of 
fraud,  and  not  to  resist  a  claim  to  recover  in  assumpsit.  The  two. 
forms  of  actions  might  require  very  different  defences.  This  is 
not  the  case  of  an  obligation  or  contract  fraudulently  incurred,  in 
an  action  upon  which  the  fraudulent  acts  of  the  obligor  or  promis- 
sqr  are  averred,  which,  as  they  do  not  enter  into  the  contract,  and 
are  not  essential  to  the  cause  of  action,  may  and  should  be  rejected 
as  surplusage,  as  in  Graves  v.  Waite,  59  N.  Y.  156,  recently  decided 
by  this  court.  The  plaintiff  was  not,  under  the  complaint,  en- 
titled to  a  verdict  and  judgment,  as  in  an  action  upon  the  note. 
The  defendant,  in  preparing  his  answer  and  putting  in  his  defence, 
was  as  unconscious  of  any  necessity  of  stating  and  setting  up  any 
defence  he  might  have  to  the  note,  as  the  framer  of  the  complaint 
was  innocent  of  any  intent  to  make  a  case  for  a  recovery  upon  the 
note,  as  a  valid  and  subsisting  obligation.      While  the  Code  is 


5v<*^t<_^^ 


KNAPP    V.    WALKER  103 


liberal  in  disregarding  technical  defects  and  omissions  in  pleadings, 
and  in  allowing  amendments,  it  does  not  permit  a  cause  of  action""''  )  ) 
to  be  changed,  either  because  the  plaintiff  fails  to  prove  the  facts  '\ '  ^ 
necessary  to  sustain  it,  or  because  he  has  mistaken  his  remedy,  and 
_theJorce  and  effect  of  the  allegations  of  his  complaint.  Code, 
§  173;  DeGraw  v.  Elmore,  50  N.  Y.  1;  Ross  v.  Mather,  51  Id. 
108;  El  wood  v.  Gardner,  45  Id.  349. 

The  judgment  must  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 

All  concur  in  result.  Judgment  reversed} 


l_    KNAPP  V.  WALKER. 
Supreme  Court  of  Errors  of  Connecticut.     1900. 

[Reported  73  Connecticut,  459.] 

Action  to  recover  damages  for  breach  of  contract  and  for  fraud 
in  an  exchange  of  horses,  brought  originally  before  a  justice  of  the 
peace  and  thence,  by  the  defendant's  appeal,  to  the  Court  of  Com- 
mon Pleas  in  Fairfield  County  and  tried  to  the  court,  Curtis,  J.; 
facts  found  and  judgment  rendered  for  the  plaintiff,  and  appeal  by 
the  defendant  for  alleged  errors  in  the  rulings  of  the  court.  No 
error. 

The  complaint  alleged  that  the  defendant  owned  a  gray  mare 
which  he  represented  to  be  worth  $100,  which  he  offered  to  ex- 
change for  a  gray  horse  owned  by  plaintiff,  of  the  value  of  $100; 
that  by  agreement  with  the  defendant,  the  plaintiff,  believing  the 
statements  of  the  defendant  to  be  true,  left  his  gray  horse  at  a  cer- 
tain livery  stable,  where  it  was  taken  by  the  defendant,  but  that 
the  defendant  failed  to  leave  his  gray  mare  at  said  place,  as  had 
been  agreed,  but  left  a  bay  mare  which  was  of  no  value  and  which 
afterwards  died;  that  plaintiff  immediately,  when  said  bay  horse 
was  brought  to  his  house  by  his  hired  man,  notified  the  defendant 
that  the  bay  mare  was  unsatisfactory. 

Paragraphs  7  and  8  of  the  complaint  were  as  follows :  "7.  The 
defendant  at  the  time  the  agreement  was  made  did  not  have  the 
gray  mare  in  his  possession,  and  did  not  intend  to  deliver  the  same 
as  he  had  agreed,  but  falsely  and  fraudulently  represented  to  the 

1  See  Mescall  v.  Tully,  91  Ind.  96;  City  of  Union  City  v.  Murphy,  176  Ind. 
597.  Compare  Wilson  v.  Haley  Live  Stock  Co.,  153  U.  S.  39,  38  L.  ed.  627. 
—  Ed. 


104  FORMS    OF    ACTION 

plaintiff  that  he  had  such  a  gray  mare  and  that  he  would  deliver 
the  same  as  aforesaid,  and  thereby  induced  the  plaintiff  to  part 
with  his  said  horse.  8.  The  defendant  made  said  statements 
knowing  them  to  be  false,  with  intent  thereby  to  make  said 
exchange  and  defraud  him." 

The  complaint  asked  for  $100  damages. 

The  answer  denied  the  material  allegations  of  the  complaint. 

The  court  found  the  facts  substantially  as  alleged  in  the  com- 
plaint, excepting  that  paragraphs  7  and  8  were  untrue,  and  found 
that  the  gray  mare,  which  the  defendant  had  promised  to  deliver 
to  the  plaintiff,  was  at  the  time  of  the  exchange  of  the  value  of  $30. 

The  defendant  claimed  that  from  the  averments  of  the  complaint 
the  action  was  for  damages  for  the  alleged  fraud  of  the  defendant ; 
and  that  since  the  complaint  contained  but  a  single  count  alleging 
fraud,  it  could  not  properly  be  interpreted  as  also  describing  a 
cause  of  action  upon  a  contract  for  which  the  plaintiff  could  recover 
after  having  failed  to  prove  the  fraud  alleged.  The  court  overruled 
said  claims  and  rendered  judgment  for  the  plaintiff  for  $30. 

Hall,  J.  A  cause  of  action  for  breach  of  a  contract  for  the  ex- 
change of  personal  property,  and  one  for  fraud  in  inducing  the 
plaintiff  to  part  with  his  property  by  means  of  false  representations, 
may  be  united  in  the  same  complaint  when  both  causes  of  action 
arise  "  out  of  the  same  transaction  or  transactions  connected  with 
the  same  subject  of  action."     General  Statutes,  §  878. 

Though  different  rules  of  damages  may  be  applicable  to  the  two 
causes  of  action,  yet  when  a  recovery  can  be  had  upon  but  one,  and 
both  arise  "  out  of  the  same  transaction  or  transactions  connected 
with  the  same  subject  of  action,"  they  may  both  be  stated  in  one 
count.  Craft  Refrigerating  Machine  Co.  v.  Quinnipiac  Brewing 
Co.,  63  Conn.  551,  562. 

The  complaint  before  us,  containing  but  one  count,  describes 
a  cause  of  action  for  fraud.  It  alleges  that  the  defendant  by  cer- 
tain false  and  fraudulent  representations,  which  are  set  forth,  in- 
duced the  plaintiff  to  part  with  his  horse  of  the  value  of  $100.  It 
also  describes  a  cause  of  action  for  breach  of  contract.  It  alleges 
that  the  defendant  failed  to  perform  his  agreement  to  deliver  a 
certain  gray  mare  in  exchange  for  the  horse  which  he  had  received 
from  the  plaintiff.  The  dealings  between  the  plaintiff  and  defend- 
ant with  reference  to  an  exchange  of  horses  was  the  transaction  out 
of  which  both  the  alleged  causes  of  action  arose,  and  a  statement 
of  all  the  claimed  facts  of  the  entire  transaction  therefore  involved 
a  statement  of  both  of  said  causes  of  action. 


BRUHEIM    V.    STRATTON  105 

Under  our  practice  the  plaintiff  had  the  right  to  state  in  one 
count  the  entire  transaction,  and  to  submit  to  the  court  the  ques- 
tion whether,  upon  the  facts,  he  was  entitled  to  recover  the  value 
of  the  horse  which  he  had  delivered  to  the  defendant,  upon  the 
ground  that  he  had  been  induced  to  part  with  it  by  the  defendant's 
fraud,  or  only  the  value  of  the  horse  which  the  defendant  had  prom- 
ised to  deliver  to  him  in  exchange,  upon  the  ground  that  his  only 
right  of  action  was  for  breach  of  contract. 

The  court  having  found  that  the  defendant  failed  to  perform  his 
agreement,  but  that  there  was  no  fraud  in  the  transaction,  properly 
rendered  a  judgment  for  damages  for  breach  of  contract.  Craft 
Refrigerating  Machine  Co.  v.  Quinnipiac  Bre^ving  Co.,  63  Conn. 
551;  Metropolis  Mfg.  Co.  v.  Lynch,  68  Conn.  459,  470. 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred. 


/   BRUHEIM   V.   STRATTON. 
Supreme  Court  of  Wisconsin.     1911. 

[Reported  145  Wisconsin,  271.] 

Kerwin,  J.^  The  complaint  in  this  action  stated  that  the  plain- 
tiff was  the  owner  of  certain  lands  in  IVIinnesota  and  that  between 
November,  1903,  and  March,  1904,  the  defendant  unlawfully  and 
wrongfully  entered  upon  said  land  and  without  authority  wilfully 
and  wrongfully  cut  standing  live  timber  growing  thereon  and  wil- 
fully and  wrongfully  took  and  carried  the  same  away  and  con- 
verted the  same  to  his  own  use,  to  the  great  injury  and  damage  of 
the  plaintiff,  and  further  alleged  the  value  of  said  timber  converted, 
and  demanded  judgment  for  that  amount  and  also  treble  said 
amount  as  damages  under  the  Minnesota  statutes.  The  complaint 
also  contains  allegations  setting  up  the  statutes  of  Minnesota  re- 
specting wilful  trespass  and  single  and  treble  damages.  The  de- 
fendant answered  admitting  that  the  Minnesota  statutes  set  up  in 
the  complaint  were  in  full  force  and  effect  in  the  state  of  Minne- 
sota as  alleged  in  the  complaint,  and  denied  every  other  allegation 
of  the  complaint. 

1  The  statement  of  facts  and  the  dissenting  opinion  of  Barnes,  J.,  are 
omitted.  —  Ed. 


106  FORMS    OF   ACTION 

The  court  below  sustained  an  objection  to  any  evidence  under 
the  complaint  for  the  reason  that  it  was  a  complaint  in  trespass 
upon  lands  in  Minnesota,  therefore  the  court  had  no  jurisdiction 
of  the  action,  and  denied  the  application  of  the  plaintiff  to  amend 
the  complaint  on  the  ground  that  it  had  no  power  or  jurisdiction 
to  allow  such  amendment,  for  the  reason  that,  the  cause  of  action 
being  one  in  trespass,  the  complaint  could  not  be  amended  so  as  to 
set  up  a  cause  of  action  for  conversion  of  the  timber  cut. 

We  think  the  court  below  erred  in  both  particulars.  In  the  first 
place  there  were  sufficient  allegations  in  the  complaint  to  make  a 
good  cause  of  action  in  conversion,  and  what  the  idea  of  the  pleader 
'  was  when  he  drew  the  complaint  was  immaterial.  If  the  allega- 
tions were  sufficient  to  constitute  a  cause  of  action  in  conversion 
the  plaintiff  was  entitled  to  have  it  treated  as  such  by  the  court, 
and  the  fact  that  the  court  had  no  jurisdiction  of  the  action  of  tres- 
pass upon  the  land  in  another  state  rendered  the  allegations  re-  ^' 
specting  a  cause  of  action  in  trespass  merely  surplusage,  and,  there  jj 
being  sufficient  allegations  aside  from  these  to  make  the  complaint 
one  in  conversion,  it  should  have  been  so  treated  by  the  court. 
Swift  V.  James,  50  Wis.  540,  7  N.  W.  656;  Bieri  v.  Fonger,  139  Wis. 
150,  120  N.  W.  862;  Morse  v.  Oilman,  16  Wis.  504;  Manning  v. 
School  Dist.,  124  Wis.  84,  102  N.  W.  356;  Franey  v.  Warner,  96 
Wis.  222,  71  N.  W.  81;  Emerson  v.  Nash,  124  Wis.  369,  102  N.  W. 
921.  Doubtless  the  complaint  as  originally  drawn  would  have 
been  subject  to  a  motion  to  make  more  definite  and  certain  or  to 
strike  out  the  surplus  allegations,  but  no  such  motion  was  made  and 
defendant  answered  on  the  merits.  Hagenah  v.  Geffert,  73  Wis. 
636,  41  N.  W.  967;  Phillips  v.  Carver,  99  Wis.  561,  75  N.  W.  432. 

Respondent  refies  upon  Joseph  Dessert  L.  Co.  v.  Wadleigh,  103 
Wis.  318,  79  N.  W.  237.  It  will  be  observed,  however,  that  was 
an  action  brought  for  trespass  upon  land  in  Wisconsin,  which  action 
the  court  had  jurisdiction  of.  Moreover  the  strict  rule  laid  down 
there  has  not  been  followed  by  this  court.  In  Bieri  v.  Fonger, 
supra,  the  court  said  (page  155) : 

"  In  the  light  of  the  very  liberal  rules  for  testing  the  sufficiency  of  plead- 
ings and  proceedings  which  have  been  declared  in  recent  years  and  the 
progressive  tendency  to  broaden  the  judicial  vision  as  to  the  scope  of  sec. 
2829,  Stats.  (1898),  aforesaid,  the  criticism  in  Joseph  Dessert  L.  Co.  v. 
Wadleigh,  supra,  would  hardly  be  made  today.  The  general  spirit  of  the 
decision  as  regards  essentiality  of  t(!chnical  accuracy  in  pleadings  and 
necessity  for  a  party  to  stand  or  fall,  under  all  circumstances,  by  the  par- 
ticular cause  of  action  he  intended  to  plea.l,  is  not  in  strict  harmony  with 
the  later-day  expressions  and  decisions." 


RAYMOND    SYNDICATE    V.    GUTTENTAG  107 

It  was  also  within  the  power  of  the  court  to  allow  the  amendment 
which  plaintiff  asked,  setting  out  the  conversion  more  definitely. 
The  cause  of  action  set  up  in  the  complaint  was  a  tort  action, 
whether  for  trespass  or  conversion,  and  the  power  of  the  court  to 
change  from  a  cause  of  action  in  trespass  to  one  in  conversion,  we 
think  is  clear.  It  follows  that  the  court  erred  in  sustaining  the 
objection  to  any  evidence  under  the  complaint  and  also  in  refusing 
the  amendment. 

By  the  Court.  —  The  judgment  below  is  reversed,  and  the  cause 
remanded  for  further  proceedings  according  to  law.^ 


/      RAYMOND   SYNDICATE  v.   GUTTENTAG. 
Supreme  Judicial  Court  of  Massachusetts.     1901. 
y^  '_J^     •    ^,j^  ^       '"^'^        [Reported  177  Massachusetts,  562.] 

ToRT^!  against  a  constable  for  the  alleged  conversion  of  sixty-six 
chairs,  a  desk,  an  office  chair  and  other  articles  belonging  to  the 
plaintiff.     Writ  dated  August  3,  1895. 

The  case  was  brought  in  the  Municipal  Court  of  the  city  of  Bos- 
ton, and  came  on  appeal  to  the  Superior  Court,  where  it  was  tried 
before  Hopkins,  J.,  without  a  jury.  It  appeared  that  the  property 
in  question,  at  the  time  of  the  alleged  conversion  on  August  1,  1895, 
was  owned  by  the  plaintiff,  and  was  in  the  possession  of  one  Wy- 
man,  doing  business  under  the  firm  name  of  "  The  Original  Wyman 
Sandwich  Company  "  on  Washington  Street  in  Boston,  under  a 
contract  between  Wyman  and  the  plaintiff  made  some  time  in 
July,  1895,  by  which  Wyman  was  to  retain  possession  of  the  prop- 
erty and  use  it  in  his  business  of  restaurant  keeper  for  a  period  of 

1  In  Cockrell  v.  Henderson,  81  Kan.  335,  105  Pac.  443,  the  Court  said: 
"  Much  space  is  occupied  in  the  briefs  in  the  discussion  of  the  question  whether 
the  plaintiff's  action  was  based  upon  fraud  and  deceit  or  upon  contract.  Some 
controversy  also  arose  between  the  trial  court  and  the  plaintiff's  attorney  on 
this  question,  and  the  court  indicated  that  the  plaintiff  should  elect  upon  which 
theory  he  would  try  the  case,  and  upon  the  refusal  of  the  attorney  verbally  to 
elect  and  upon  his  statement  that  he  relied  only  upon  his  petition  the  court 
said  that  the  plaintiff's  attorney  had  already  indicated  that  he  relied  upon 
contract.  This  discussion  and  controversy  seem  quite  irrelevant,  the  only 
proper  consideration  being  whether  the  petition  states  facts  constituting  a 
cause  of  action  and  whether  the  evidence  was  sufficient  to  justify  the  submis- 
sion of  the  case  to  the  consideration  of  the  jury."  Compare  Hyams  v.  Stuart 
King,  [1908]  2  K.  B.  696.  —  Ed. 


r// 


108  FORMS    OF    ACTION 

ninety  days,  and  at  the  expiration  of  that  period  was  either  to  pur- 
chase the  property  or  return  it  to  the  plaintiff.  On  August  1, 
1895,  while  Wyman  was  in  possession  of  the  property  under  this 
contract,  the  property  was  attached  by  the  defendant  on  a  writ 
issued  from  the  Municipal  Court  of  the  city  of  Boston  in  favor  of 
certain  Fonseca  Brothers  against  Wyman,  was  removed  to  a  public 
storehouse  and  subsequently  was  sold  by  the  defendant  at  public 
auction  on  an  execution  in  the  last  named  action.  .  .  . 

At  the  close  of  the  evidence,  the  defendant  requested  the  judge 
to  rule,  that  the  plaintiff  could  not  recover  upon  the  evidence,  and 
that  upon  the  evidence  the  plaintiff  was  not  entitled  to  the  posses- 
sion of  the  goods  and  consequently  could  not  maintain  this 
action. 

The  judge  refused  to  give  either  ruling,  and  found  for  the  plain- 
tiff in  the  sum  of  $215.     The  defendant  alleged  exceptions. 

Barker,  J.^  The  declaration  alleges  "  that  the  defendant  has 
converted  to  his  own  use  the  property  of  the  plaintiff."  The  bill 
of  exceptions  purports  to  state  the  facts  of  the  case,  and  that  the 
defendant  requested  rulings  that  the  plaintiff  could  not  recover 
upon  the  evidence,  and  that  upon  the  evidence  the  plaintiff  was 
not  entitled  to  the  possession  of  the  goods  and  consequently  could 
not  maintain  the  action.  Both  briefs  are  addressed  to  the  question 
whether  upon  the  facts  stated  the  action  would  lie  upon  the  decla- 
ration, and  we  therefore  consider  that  question. 

The  declaration  follows  a  statutory  form  first  given  in  St.  1851, 
c.  233,  and  which  is  also  found  in  St.  1852,  c.  312,  Gen.  Sts.  c.  129, 
and  Pub.  Sts.  c.  167.  None  of  these  statutes  abolished  the  action 
of  trover.  Each  of  them  enacted  that  there  should  be  only  three 
divisions  of  personal  actions,  one  of  which  divisions,  actions  of  tort, 
has  always  included  the  action  of  trover  by  that  name,  the  two 
first  statutes  designating  it  as  the  action  "  now  known  as  "  trover, 
and  the  two  last  as  the  action  "  heretofore  known  as  "  trover. 
St.  1851,  c.  233,  §  1.  St.  1852,  c.  312,  §  1.  Gen.  Sts.  c.  129,  §  1. 
Pub.  Sts.  c.  167,  §  1. 

Under  the  old  practice  the  owner  of  chattels  could  not  maintaiti 
trover  for  their  conversion  unless  when  the  acts  complained  of  were 
done  he  had  possession  or  the  right  to  immediate  possession.  Fair- 
bank  V.  Phelps,  22  Pick.  535,  and  cases  cited.  The  owner's  remedy 
for  damage  to  his  reversionary  interest  in  chattels,  done  when  he 
had  neither  possession  nor  the  right  to  immediate  possession,  was 

*  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 


J,  f^^^Jub^  A^-^cuf  L:  (j-<^ 


WILSON    V.    RYBOLT  109 

an  action  on  the  case.  Ayer  v.  Bartlett,  9  Pick.  156.  Forbes  v. 
Parker,  16  Pick.  462.  After  tlie  adoption  of  the  practice  acts  it 
was  held  that  they  made  no  change  in  the  rules  of  evidence  applica- 
ble to  the  causes  of  action  comprehended  under  the  designation  of 
actions  of  tort,  and  that  it  was  still  necessary  under  the  statutory 
form  given  for  trover  that  the  evidence  should  be  such  as  would 
have  proved  a  conversion  in  an  action  of  trover  at  common  law. 
Robinson  v.  Austin,  2  Graj^,  564.  Winship  v.  Neale,  10  Gray, 
382. 

It  is  settled  that  to  maintain  tort  under  a  declaration  like  the 
present  one  the  plaintiff  must  show  possession  or  the  right  to  imme- 
diate possession.  Winship  v.  Neale,  10  Gray,  382.  Landon  v. 
Emmons,  97  Mass.  37.  Ring  v.  Neale,  114  Mass.  111.  Clapp  v. 
Campbell,  124  Mass.  50.  Baker  v.  Seavey,  163  Mass.  522,  526. 
Field  V.  Early,  167  Mass.  449,  451.  The  ground  of  action  of  one 
not  in  possession  or  having  the  right  to  immediate  possession  should 
be  set  forth  in  a  different  form.     Baker  v.  Seave}'-,  uhi  supra. 

The  facts  stated  show  that  when  the  plaintiff's  chattels  were 
attached  by  the  defendant,  the  plaintiff  had  neither  possession  nor 
the  right  to  possession.  There  is  nothing  to  show  that  the  attach- 
ment of  the  goods  worked  a  forfeiture  of  Wyman's  right  to  retain 
and  use  them  under  his  contract  with  the  plaintiff,  or  gave  the  lat- 
ter a  right  to  retake  them.  See  Ayer  v.  Bartlett,  9  Pick.  156,  160. 
Therefore  the  plaintiff  could  not  recover  in  the  action  upon  the 
facts,  and  the  jury  should  have  been  instructed  to  that  effect,  in 
accordance  with  the  defendant's  requests.  .  .  . 

Exceptions  sustained. 


I    WILSON  and   Another  v.   RYBOLT. 
r- 

SuPREME  Court  of  Indiana.     1861. 

[Reported  17  Indiana,  391.] 

Perkins,  J.*  Suit  before  a  justice  of  the  peace  to  recover  pos- 
session of  personal  property,  viz.,  a  certain  title  deed  to  a  lot  of 
ground.  Judgment  for  the  plaintiff,  on  appeal  to  the  Common 
Pleas.  The  first  question  is,  whether  a  title  deed  can  be  recovered 
in  this  form  of  action. 

*  A  part  of  the  opinion  and  the  dissenting  opinion  of  Hanna,  J.,  are  omitted. 
—  Ed. 


110  FORMS   OF   ACTION 

A  title  deed  is  a  personal  chattel;  but  like  the  log  chain  of  a  saw- 
mill, or  certain  other  fixtures,  it  is  so  connected  with,  and  essential 
to,  the  ownership  of  real  estate,  that  it  descends  with  it  to  the  heir. 
Blackstone's  Comm.,  Book  2,  p.  427;  Hoskins  v.  Tarrence,  5 
Blackf.  417. 

From  a  very  early  period  chancery  compelled  the  delivery  of 
title  deeds  where  necessary.  Blackstone's  Comm.,  Shar.'s  Ed., 
Book  3,  p.  153,  note.  Later  they  became  recoverable  in  an  action 
of  detinue.  Chitty,  in  his  work  on  Pleadings  (vol.  1,  p.  122),  says, 
detinue  "  lies  for  the  recovery  of  charters  and  title  deeds,"  &c.  See 
Atkinson  v.  Baker,  4  Term  Rep.  430. 

Now,  what  was  the  actioa  of  detinue  ?  Blackstone,  in  his  Com- 
mentaries (Book  3,  p.  151),  thus  describes  its  incidents:  "  In  order, 
therefore,  to  ground  an  action  of  detinue,  which  is  only  for  the 
detaining,  these  points  are  necessary.  1.  That  the  defendant 
came  lawfully  into  possession  of  the  goods,  as  either  by  delivery  to 
him,  or  finding  them.  2.  That  the  plaintiff  have  a  property.  3. 
That  the  goods  themselves  be  of  some  value ;  and,  4.  That  they  be 
ascertained  in  point  of  identity.  Upon  this  the  jury,  if  they  find 
for  the  plaintiff,  assess  the  several  values  of  the  parcels  detained, 
and  also  damages  for  the  detention;  and  the  judgment  is  condi- 
tional ;  that  the  plaintiff  recover  the  said  goods,  or  (if  they  cannot 
be  had),  their  respective  values,  and  also  the  damages  for  detaining 
them." 

Such  was  the  common  law  action  of  detinue;  and  as  it  was  an 
action  for  the  recovery  of  personal  property  only,  we  must  hold 
that  whatever  could  be  recovered  by  it  was  regarded,  for  the  pur- 
poses of  this  civil  remedy,  as  personal  property.  The  action  of 
replevin,  at  common  law,  was  originally  of  a  more  limited  charac- 
ter. It  lay  to  recover  back  property  illegally  distrained;  but  it 
afterward  came  into  use  in  all  cases  where  personal  property  was 
illegally  taken.  The  two  actions  of  detinue,  for  unlawful  deten- 
tions, and  replevin  for  unlawful  takings,  thus  came  to  cover  the 
whole  ground  of  unlawful  deprivations  of  personal  property,  so  far 
as  recovering  the  specific  articles  was  concerned.  1  Chit.  PI.  162, 
1G4. 

These  two  actions,  viz.,  detinue,  and  replevin,  in  their  fullest 
scope,  were  formerly  in  use  in  this  State.  Ind.  Dig.,  p.  46,  et  seq.; 
see  Will,  on  Per.  Prop.,  top  p.  49.  And  it  will  be  seen  at  a  glance, 
by  inspecting  the  provision  in  the  code  for  the  recovery  of  personal 
property,  that  it  covers  the  entire  ground  of  both  actions.  That 
provision  is  (§  128),  "  when  any  personal   goods  are  wrongfully 


WILSON    V.    RYBOLT  111 

taken,  or  unlawfully  detained,"  &c.  The  jurisdiction  of  justices 
of  the  peace,  as  to  the  character  of  articles  of  property,  is  equally 
extensive.     2  R.  S.,  §  71,  p.  464. 

The  conclusion  irresistibly  follows,  that  the  possession  of  title 
deeds  may  be  recovered  in  the  action  under  the  code  for  the  re- 
covery of  personal  chattels.  .  .  . 

Per  Curiam.  —  The  judgment  is  affirmed  with  costs. ^ 

^  For  a  comparison  of  the  common  law  and  code  actions  for  the  recovery 
of  personal  property,  see  Ames  v.  Mississippi  Broom  Co.,  8  Minn.  467. 

As  to  the  necessity  of  possession  by  the  defendant  at  the  time  the  action 
is  brought  under  code  provisions  as  to  claim  and  deUvery  of  personal  prop- 
erty, see  Nichols  v.  Michael,  23  N.  Y.  264,  80  Am.  Dec.  259;  Sinnott  v. 
Fleiock,  165  N.  Y.  444,  59  N.  E.  265,  53  L.  R.  A.  565,  80  Am.  St.  Rep.  736; 
Wilhs  V.  DeWitt,  3  S.  D.  281,  52  N.  W.  1090;  Kierbow  v.  Young,  20  S.  D. 
414,  107  N.  W.  371,  8  L.  R.  A.  (n.  s.),  216,  11  Ann.  Cas.  1148;  Andrews  v. 
Hoesich,  47  Wash.  220,  91  Pac.  772,  18  L.  R.  A.  (n.  s.),  1065.  —  Ed. 


CHAPTER  V. 

PARTIES. 

Section  I. 

Right  to  Sue  and  Liability  to  be  Sued. 

I        PEARSON   V.   NESBIT. 
Supreme  Court  of  North  Carolina.     1827. 
[Reported  1  Devereux,  315.] 

Richmond  Pearson  appointed  the  present  Plaintiff,  and  Jesse  A. 
Pearson,  executor  and  executrix  of  his  will.  At  the  time  of  his 
death,  he  was  indebted  to  Alexander  Nesbit  &  Company,  which 
consisted  of  the  present  Defendant,  and  the  same  Jesse  A.  Pearson, 
whom  he  had  appointed  one  of  his  executors.  ^^ 

A  writ  issued  in  the  name  of  "  A.  Nesbit  &  Co.,"  Plaintiffs, 
against  "  Jesse  A.  Pearson  and  Elizabeth  Pearson,  executor  and 
executrix  of  Richmond  Pearson,"  Defendants,  returnable  to  the 
Fall  Term  of  1820,  of  Rowan  Superior  Court,  when  judgment  was 
confessed  thereon  by  the  Defendants.  Execution  issued  on  this 
judgment,  and  was  continued  until  the  Spring  Term  of  1823,  when 
a  return  of  Nulla  bona  testatoris  was  made.  After  the  confession 
of  the  judgment  (the  case  did  not  state  when)  Jesse  A.  Pearson 
died.  A  scire  facias  on  the  judgment  issued  at  the  instance  of 
Nesbit,  as  surviving  partner,  to  subject  the  present  Plaintiff  de 
bonis  propriis. 

At  the  Fall  Term  of  1827,  the  present  Plaintiff,  one  of  the  original 
Defendants,  filed  an  affidavit,  stating  that  Jesse  A.  Pearson  was 
both  Plaintiff  and  Defendant  in  the  first  action;  that  she  never 
had  received  any  of  the  assets  of  Richmond  Pearson,  and  moved, 
1st,  for  a  writ  of  error  coram  nobis;  and  if  the  matter  assigned  was 
not  error,  then  2dly,  to  set  aside  the  judgment  confessed  by  her  and 
Jesse  A.  Pearson.  The  defendant  pleaded,  1st,  In  nullo  est  erra- 
tum. 2dly,  that  if  there  was  error,  it  was  waived  by  the  confession 
of  the  judgment. 

On  the  last  Circuit,  before  his  honor.  Judge  Strange,  an  order 
in  the  alternative  was  made,  whereby  the  judgment  was  reversed 
for  error,  if  error,  coram  nobis,  was  proper;  but,  if  not,  then  the 
judgment  was  vacated.     Upon  which,  Nesbit  appealed. 

112 


MASON   V.    INTERCOLONIAL   RAILWAY   OF   CANADA  113 

Henderson,  J.     A  suit  at  law,  is  a  contest  between  two  parties 
Jja  a  Court  of  Justice;  the  one  seeking,  and  the  other  withholding 
_the  thing  in  contest.     The  same  individual  cannot  be,  at  the  same 
time,  both  the  person  seeking  and  the  person  withholding.     For  it 
involves  an  absurdity,  that  a  person  should  seek  from  himself,  or 
withhold  from  himself.     Between  a  corporation  and  the  individu- 
als composing  it,  this  identity  does  not  exist,  and  the  absurdity 
above  stated  is  avoided;  but  where  the  same  person  is  both  Plain- 
tiff and  Defendant  in  different  rights,  as  for  himself  on  the  one  side, 
and  as  executor  on  the  other,  this  absurdity  is  involved.     When     Li 
adversary  rights,  as  creditor  and  executor,  or  debtor  and  executor,  \ 
meet  in  the  same  individual,  the  law  considers  the  contest  as  set- 
tled —  at  least  as  long  as  the  union  exists.     As  soon  therefore,  as  ■ 
it  appears  to  the  Court,  that  the  same  individual  is  both  Plaintiff  j 
and  Defendant,  any  judgment  entered  up  in  the  cause  is,  to  say  the 
least,  erroneous,  and  should  be  reversed. 

I  am  not  prepared  to  say,  whether  a  writ  of  error,  or  a  motion  to  '  ^ 
vacate,  is  the  most  proper  mode  of  proceeding  in  this  case;   but  I 
am  satisfied,  that  a  writ  of  error  is  a  proper  remed}^,  although  it 
may  not  be  the  only  proper  one. 

The  judgment  of  the  Superior  Court,  reversing  the  original  judg- 
ment, must  be  affirmed. 
C  Per  Curiam.  Judgment  of  reversal  affirmed.^ 

MASON   V.   INTERCOLONIAL   RAILWAY   OF   CANADA 

&  Trustees. 

Supreme  Judicial  Court  of  Massachusetts.     1908. 

[Reported  197  Massachusetts,  349.] 

Knowlton,  C.  J.^  This  is  an  action  brought  by  a  trustee  process 
to  recover  damages  for  personal  injuries.  The  defendant  has  not 
appeared,  but  a  member  of  our  bar,  as  a  friend  of  the  court,  follow- 
ing the  practice  approved  by  Chief  Justice  IMarshall  in  Osborn  v. 

1  McElhanon  v.  McElhanon,  63  111.  457;  Eastman  v.  Wright,  6  Pick. 
(Mass.),  316;  Pierce  v.  Boston  Five  Cents  Savings  Bank,  125  Mass.  593; 
Taylor  v.  Thompson,  176  N.  Y.  168,  68  N.  E.  240;  Newsom  v.  Newsom,  4  Ired. 
Law  (N.  C),  381;  Perkins  v.  Se  Ipsam,  11  R.  I.  270;  Sweetland  v.  Porter, 
43  W.  Va.  189,  27  S.  E.  352,  accord.     See  Dicey,  Parties,  p.  65. 

As  to  the  reUef  given  by  equity  and  under  the  codes  of  procedure,  see 
Crosby  v.  Timolat,  50  Minn.  171,  52  N.  W.  526;  Cole  v.  Reynolds,  18  N.  Y. 
74.     Compare  Elhs  v.  Kerr,  [1910]  1  Ch.  529.  —  Ed. 

^  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 


114  PARTIES 

United  States  Bank,  9  Wheat.  738,  870,  has  brought  before  the 
court  a  suggestion  that  the  action  be  dismissed,  and  also  an  affida- 
vit of  the  deputy  of  the  Minister  of  Justice  and  Attorney  General 
of  Canada,  including  a  copy  of  the  "  Act  respecting  Government 
Railways,"  from  which  it  appears  that  the  so  called  defendant,  the 
Intercolonial  Railway  of  Canada,  is  the  property  of  His  Majesty, 
Edward  VII.,  King  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  in  the  right  of  his  Dominion  of  Canada,  and  is  not  a  cor- 
poration. The  truth  of  the  matters  thus  shown  to  the  court  is  not 
questioned.  It  appears  that  no  subject,  private  individual  or  cor- 
poration has  any  interest  or  concern  by  way  of  property  or  direction 
in  the  ownership  or  working  of  the  Intercolonial  Railway,  but  that 
it  is  owned  and  operated  by  the  king,  through  his  government  of 
Canada,  for  the  public  purposes  of  Canada.  All  income  arising 
from  the  operation  of  it  is,  by  the  laws  of  Canada,  appropriated  to 
the  consolidated  revenue  fund  of  Canada,  upon  which  fund  all  the 
expenses  of  the  government  of  Canada  are  chargeable.  All  moneys 
and  income  due  by  reason  of  the  operation  or  business  of  the  rail- 
way are  chargeable  as  belonging  to  the  King,  and  are  collectible  in 
his  name.  Such  moneys,  when  collected,  are  deposited  to  the 
credit  of  the  minister  of  finance  and  register  general  of  Canada,  and 
carried  to  the  credit  of  the  consolidated  revenue  fund,  which  fund 
is  appropriated  to  the  public  debt  and  service  of  Canada.  The 
cost  of  maintenance  and  operation  of  this  railway  is  provided  for 
by  appropriation  of  the  parliament  of  Canada  out  of  the  consoli- 
dated revenue  fund,  and  all  the  receipts  from  the  working  of  the 
railway  are  a  part  of  the  moneys  of  Canada,  appropriated  to  the 
consolidated  revenue  fund,  and  are  not  used  for  the  maintenance 
or  operation  of  the  railway,  except  as  the  receipts  from  customs  or 
excise  duties  or  from  any  other  branch  of  the  public  service  are  so 
used.  See  also  The  Queen  v.  McLeod,  8  Canada  Supreme  Court, 
1,  23. 

Upon  this  suggestion  the  question  at  once  arises  whether  the 
court  has  jurisdiction  of  a  suit  which  is  virtually  against  the  king 
of  a  foreign  country.  An  answer  in  the  negative  comes  almost  as 
quickly.  1  .  .  . 

'  The  learned  chief  justice  then  discussed  the  following  cases:  Briggs  v. 
Lightboats,  11  Allen  (Mass.),  157;  Schooner  Exchange  v.  M'Faddon,  7 
Cranch,  116;  Wadsworth  v.  Queen  of  Spain,  17  Q.  B.  171;  De  Haber  v.  Queen 
of  Portugal,  17  Q.  B.  171,  196;  The  Constitution,  L.  R.  4  P.  D.  39;  The  Parle- 
ment  Beige,  L.  R.  5  P.  D.  197;  Vavasseur  v.  Krupp,  9  Ch.  D.  351;  Young  v. 
The  Scotia,  [1903]  A.  C.  501;  The  Jassy,  75  L.  J.  P.  D.  and  A.  93.  —  Ed. 


A^ 


>^ 


STEAMBOAT    PEMBINAW    V.    WILSON  115 

The  principles  which  have  long  been  recognized  as  applicable  to 
the  dealings  of  all  nations  with  one  another,  as  well  as  the  formal 
decisions  of  the  courts,  make  it  plain  that  this  action  must  be  dis-  '\-^' 
missed  for  want  of  jurisdiction.  The  plaintiff  must  seek  her 
remedy  in  the  courts  of  the  country  in  which  she  received  her  in- 
jury, where  there  is  a  statutory  provision  for  such  cases. 

Action  dismissed.^ 


STEAMBOAT  PEMBINAW  and  Owner  v.  WILSON. 
Supreme  Court  of  Iowa.     1861. 
[Reported  11  Iowa,  479.] 

Baldwin,  J.  The  note  sued  on  was  given  by  the  defendant  to 
the  "  S.  B.  Pembinaw  and  owners,"  and  the  suit  was  brought  in  the 
name  of  the  Steamboat  Pembinaw  and  owners,  wdthout  any  alle- 
gation in  the  petition  that  plaintiff  was  a  partnership  or  corporation 
doing  business  under  that  name  and  style.  The  defendant  moved  X  ^ 
to  dismiss  the  cause  in  the  District  Court,  for  the  reasons  that  the 
petition  showed  that  there  was  no  party  plaintiff  to  the  suit,  and 
for  other  like  causes.  This  motion  was  overruled  and  judgment  il^^^ 
for  plaintiff  was  rendered  for  the  amount  due  on  the  note. 

There  is  a  special  provision  of  our  statute  under  which  suits  may 
be  brought  against  boats  by  their  name  when  a  lien  is  sought  to  be 
enforced;  but  there  is  no  special  authority  given  under  which  a 
boat  or  the  owners  thereof  may  sue  in  the  name  of  such  boat.  Civil 
actions  are  required  to  be  brought  in  the  names  of  the  real  parties 

1  See  also  Mighell  v.  Sultan  of  Johore,  [1894]  1  Q.  B.  149;  Statham  v. 
Statham  and  the  Gaekwar  of  Baroda,  [1912]  P.  92;  Chisholm  v.  Georgia,  2 
DaU.  (U.  S.),  419,  1  L.  ed.  440;  Hans  v.  Louisiana,  134  U.  S.  1,  33  L.  ed.  842; 
Porto  Rico  V.  Ramos,  232  U.  S.  627, —  L.  ed.  — ,  34  S.  Ct.  461;  Wilson  v. 
Louisiana  Purchase  Exposition  Commission,  133  la.  586,  110  N.  W.  1045; 
Dicey,  Parties,  p.  4;  Foster,  Federal  Practice,  5th  ed.,  sees.  94-105. 

As  to  liability  of  the  representatives  of  foreign  sovereigns,  see  Magdalena 
Steam  Navigation  Co.  v.  Martin,  2  El.  &  El.  94.  As  to  consuls,  see  Bors  v. 
Preston,  111  U.  S.  252,  28  L.  ed.  419;   Miller  v.  Van  Loben  Sels,  66  Cal.  341, 

5  Pac.  512;  Wilcox  v.  Luco,  118  Cal.  639,  45  Pac.  676,  50  Pac.  758. 

A  sovereign  cannot  be  sued  in  his  own  courts  without  his  consent.  Young  v. 
The  Scotia,  [1903]  A.  C.  501;  Kansas  v.  United  States,  204  U.  S.  331,  51  L. 
ed.  510,  27  S.  Ct.  388. 

As  to  the  rights  of  a  sovereign  as  plaintiff,  see  King  of  Spain  v.  Hullet,  1  CI. 

6  F.  333;  State  v.  Ohio  Oil  Co.,  150  Ind.  21,  49  N.  E.  809,  47  L.  R.  A.  627; 
King  V.  Knepper,  22  Mo.  550;  Repubhc  of  Honduras  v.  Soto,  112  N.  Y.  310, 
19  N.  E.  845.  —  Ed. 


.■o^- 


116  PARTIES 

in  interest.  Section  1676,  Code  of  1851.  "  Pembinaw  &  Owners  " 
is  not  alleged  to  be  a  corporation  or  partnership,  and  is  not  a  party 
within  the  meaning  of  this  section.  It  is  probable  however  that 
the  District  Court  based  the  right  of  plaintiff  to  sue,  in  this  capa- 
city, upon  the  provisions  of  section  1692  of  the  Code,  which  says, 
that  where  an  action  is  founded  upon  a  written  instrument,  suit 
may  be  brought  by  or  against  any  of  the  parties  thereto,  by  the 
same  name  and  description  as  those  by  which  they  are  designated 
in  such  instrument.  We  cannot  think  that  the  legislature  in- 
tended by  the  enactment  of  this  section  to  provide  that  a  suit  could 
be  brought  in  name  of  a  steamboat,  hotel,  toll-gate  or  race-horse, 
although  each  may  have  a  name  and  may  be  made  the  payee  of  a 
note.  Suits  must  be  brought  in  the  name  of  the  real  parties  in 
interest;  and  "  names,"  as  here  used,  does  not  refer  to  something 
inanimate,  or  having  no  legal  existence  but  to  something  that  can 
sue  or  be  sued,  as  persons  or  corporations,  and  that,  as  such,  can 
have  an  interest  in  a  suit.  Judgment  reversed} 


ST.  PAUL  TYPOTHET^  and  Another  v.  ST.  PAUL  BOOK- 
BINDERS'  UNION   NO.  37  and  Others. 

Supreme  Court  of  Minnesota.     1905. 

[Reported  94  Minnesota,  351.] 

Brown,  J.^  This  action  was  brought  by  the  St.  Paul  Typothetae, 
an  unincorporated  association  of  persons,  firms,  and  corporations 
engaged  in  the  business  of  printing  and  bookbinding,  and  the  West 
Publishing  Company,  a  corporation  and  member  of  the  association, 
against  the  St.  Paul  Bookbinders'  Union  No.  37,  an  unincorporated 
association  of  printers  and  bookbinders,  and  the  members  thereof, 
to  recover  damages  for  an  alleged  breach  of  contract.  Separate 
demurrers  were  interposed  to  the  complaint,  one  by  the  Book- 
binders' Union,  and  one  by  the  individual  members  thereof,  the 
grounds  of  which  are  (1)  that  plaintiff  St.  Paul  Typothetae  has  no 
legal  capacity  to  sue,  and  (2)  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  against  the  union  in 
favor  either  of  the  Typothetae  or  the  West  Publishing  Company. 
The  demurrer  as  to  the  West  Publishing  Company  was  sustained, 
but  overruled  as  to  the  Typothetae.     Both  parties  appealed. 

1  Compare  Western  &  A.  R.  R.  Co.  v.  Dalton  Marble  Works,  122  Ga.  774, 
50  S.  E.  978.  —  Ed. 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


ST.    PAUL   TYPOTHET.E    V.    ST.    PAUL    BOOKBINDERS'    UNION       117 

The  complaint  alleges  that  the  persons,  firms,  and  corporations 
named  therein,  twenty-five  in  number,  are  associated  together  and 
doing  business  in  St.  Paul  under  the  name  and  title  of  "  St.  Paul 
TjTJothetse  " ;  that  each  of  the  said  persons,  firms,  and  corporations 
were  at  all  times  named  therein  engaged  in  pu])lishing  and  book- 
binding, and  emploj-ers  of  such  printers  as  were  necessary  to  carry 
on  and  conduct  their  several  enterprises;  that  the  object  in  the 
formation  of  the  T^T^othetse  was  the  protection  and  promotion  of 
the  interests  of  its  several  members,  correcting  abuses,  promoting 
concerted  action,  reconciling  differences,  and  adjusting  controver- 
sies between  employer  and  employee,  and  particularly  in  securing 
definite,  stable,  and  harmonious  relations  between  the  various 
members  of  the  association  and  their  respective  employees.  It 
further  alleges  that  defendant  St.  Paul  Bookbinders'  Union  No. 
37,  is  an  unincorporated  association  composed  of  the  persons 
named  therein,  the  object  and  pmpose  of  which  is  the  advance- 
ment and  protection  of  the  mutual  and  individual  interests  of  all 
its  members  in  the  matter  of  employment,  labor,  and  wages,  and 
especially  the  regulation  of  the  relations  between  employer  and 
employee  in  the  bookbinding  trade.  It  further  alleges  that  on 
November  21,  1903,  plaintiff  St.  Paul  Typothetae  and  defendant 
Bookbinders'  Union,  for  a  valuable  consideration,  by  and  through 
their  officers  entered  into  a  certain  contract,  a  copy  of  which  is 
attached  to  and  made  a  part  of  the  complaint. 

It  is  unnecessary  here  to  set  out  the  contract  in  full.  It  provides 
generally  the  terms  of  employment  between  the  firms  and  corpora- 
tions forming  the  T3'pothetse,  and  the  members  of  the  union; 
classifying  employees,  and  fixing  their  compensation  in  accordance 
\vith  the  nature  of  the  work  of  each,  and  specifying  generally  the 
terms  and  conditions  of  employment.  It  specially  provides  that 
during  the  life  of  the  contract  no  strike  or  lockout  shall  occur,  and 
that  any  differences  which  may  arise  as  to  the  construction  of  the 
contract  shall  be  settled  by  arbitration,  providing  the  parties  do 
not  reach  an  amicable  agreement.  The  complaint  alleges  a  breach 
of  this  contract  on  the  part  of  the  union  and  its  members;  that  the 
members  of  the  union  in  the  employ  of  the  West  Publishing  Com- 
pany, a  party  plaintiff  and  member  of  the  Typothetae,  went  out  on 
a  strike  without  cause  or  provocation,  and  without  a  submission  of 
their  grievance  to  arbitration,  to  the  great  damage  of  that  com- 
pany. The  complaint  further  alleges  that  at  the  time  the  contract 
was  entered  into  it  was  well  known,  understood,  and  agreed  by  all 
the  parties  that  said  association,  St.  Paul  Typothetae,  was  not  an 


118 


PARTIES 


employer  of  labor,  and  did  not  intend  to  employ  any  labor  or  work- 
men whatsoever,  and  that  each  and  all  the  provisions,  covenants, 
conditions,  and  agreements  in  said  contract  to  be  performed  and 
kept  by  the  union  and  its  members  were  made  for  the  benefit  of 
each  and  all  the  members  of  the  Typothetse  who  were  then  em- 
ploying, or  should  thereafter  during  the  life  of  the  contract  employ, 
workmen. 

The  only  questions  necessary  to  be  considered  on  this  appeal  are 
(1)  whether  the  Typothetse  has  legal  capacity  to  sue,  and  (2) 
whether  the  complaint  states  a  cause  of  action  against  the  Book- 
binders' Union.  Whether  the  complaint  states  a  cause  of  action 
in  favor  of  the  West  Publishing  Company  against  the  individual 
members  of  the  union  is  not  presented  by  the  demurrer.  And 
whether  it  states  a  cause  of  action  in  favor  of  that  company  against 
the  union,  as  an  organization,  is  determined  by  the  further  question 
whether  the  union  may  be  sued  in  its  association  name. 

The  Typothetse  and  Bookbinders'  Union,  so  far  as  their  legal 
status  is  concerned,  occupy  the  same  position.  Both  are  unincor- 
porated voluntary  associations,  and  the  principles  of  law  applicable 
generally  to  unincorporated  clubs  and  societies  apply  to  each.  The 
position  such  organizations  occupy  under  the  law  is  a  question 
upon  which  the  courts  are  not  fully  agreed.  It  is  generally  ac- 
knowledged that  they  are  sui  getieris,  but  the  courts  have  had  diffi- 
culty in  agreeing  upon  the  legal  principles  to  apply  to  them.  Many 
cases  hold  that  in  some  of  their  relations  they  are  to  be  regarded 
as  copartnerships,  and  governed  by  the  general  laws  applicable 
to  that  relation,  and  that  in  other  respects  the  law  of  corpora- 
tions appHes  to  their  affairs.  The  distinction  in  this  respect  is 
made  (1)  as  to  cases  involving  rights  between  the  association  and 
third  parties  dealing  with  it,  and  (2)  as  to  cases  involving  contro- 
versies between  the  members  respecting  the  property  owned  by  the 
association.  Niblack,  Ben.  Soc.  221.  Such  organizations  are 
properly  divided  into  two  classes,  viz.,  those  organized  for  the  pur- 
pose of  conducting  some  business  enterprise,  and  those  whose  pur- 
pose is  solely  the  promotion  of  the  interests  and  welfare  of  their 
members,  unaccompanied  by  any  business  functions.  As  to  this 
class,  it  would  seem  that  the  law  of  principal  and  agent  should 
apply.  Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188. 
Both  the  Typothetse  and  the  Union  come  within  this  class.  The 
Typothetse  is  not  a  business  association  within  the  proper  meaning 
of  the  term;  it  is  not  engaged  in  employing  labor,  or  entering  into 
trade  contracts  on  its  own  behalf.      Its  exclusive  occupation,  as 


ST.  PAUL  TYPOTHET^  V.    ST.  PAUL  BOOKBINDERS'  UNION   119 

disclosed  by  the  complaint,  is  that  of  promoting  and  protecting 
the  persons,  firms,  and  corporations  composing  it  in  controversies 
\\\i\\  their  employees,  and,  as  their  representative  or  agent,  enter- 
ing into  on  their  behalf  contracts  with  such  employees.  So  far  as 
the  complaint  discloses,  it  has  no  capital  stock  and  no  property. 
The  union  is  an  association  of  employees  or  workmen  organized  for 
similar  purposes ;  it  has  no  capital  stock  or  property;  its  members 
do  not  work  under  its  authority  or  in  its  behalf,  but  for  themselves. 

But  whatever  may  be  the  law  applicable  to  such  associations 
generally,  there  is  one  respect  in  which  the  authorities  are  agreed, 
and  that  is  that  at  common  law  they  are  not,  whether  organized 
for  business  or  other  purposes,  entitled  to  recognition  in  the  courts 
in  their  association  name.  It  is  well  settled  that,  in  the  absence 
of  a  statute  otherwise  providing,  to  be  entitled  to  conduct  judicial 
proceedings  in  court,  a  party  litigant  must  be  either  a  natural  or 
artificial  person.  The  rule  is  correctly  stated  in  22  Enc.  PI.  &  Pr. 
230,  where,  in  speaking  of  unincorporated  societies,  such  as  those 
here  involved,  it  is  said  that  such  societies  cannot  maintain  an 
action  in  their  association  name,  but  must  sue  in  the  name  of  the 
individuals  composing  them,  however  numerous  they  may  be. 
Such  societies,  in  the  absence  of  statutes  recognizing  them,  have  no 
legal  entity  distinct  from  that  of  their  members.  The  rule  is  fol- 
lowed by  an  unbroken  line  of  authorities,  though  a  different  rule 
has  been  applied  in  many  of  the  courts  in  actions  purely  of  an  equi- 
table nature.  On  the  question  generally,  see  Niblack,  Ben.  Soc. 
183;  Richardson  v.  Smith,  21  Fla.  336;  Mexican  v.  Yellow  Jack, 
4  Nev.  40;  Detroit  v.  Detroit,  44  Mich.  313,  6  N.  W.  675;  Danbury 
V.  Bean,  54  N.  H.  524;  Mayer  v.  Journeymen,  47  N.  J.  Eq.  519, 
20  Atl.  492;  Nightingale  v.  Barney,  4  G.  Greene  (Iowa),  106;  Bar- 
bour V.  Albany  Lodge,  73  Ga.  474;  Steamboat  Pembinaw  v.  Wilson, 
11  Iowa,  479. 

The  rule  has  been  changed  and  modified  in  many  of  the  states 
by  statutory  enactments  permitting  such  associations  to  sue  and 
be  sued  in  their  adopted  name.  It  is  claimed  in  the  case  at  bar 
that  section  5177,  G.  S.  1894,  has  changed  and  modified  it  in  this 
state.  Such  is  not  our  understanding  of  the  statute.  It  provides 
that  when  two  or  more  persons  associate  in  any  business,  transact- 
ing that  business  under  a  common  name,  whether  it  includes  the 
names  of  such  persons  or  not,  the  association  may  be  sued  by  its 
common  name.  The  statute  has  been  considered  in  several  cases, 
but  in  no  case  to  which  our  attention  has  been  called  has  it  been 
held  that  such  an  association  may  bring  suit  in  the  name  in  which 


120  PARTIES 

it  carries  on  its  business.  The  statute  does  not  provide  that 
actions  may  be  brought  in  the  name  of  the  association,  but  only 
that  actions  may  be  brought  against  it.  It  was  construed  in 
Dimond  v.  Minnesota  Savings  Bank,  70  Minn.  298,  300,  73  N.  W. 
182,  where  it  was  said  that  it  was  enacted  in  the  interests  of  credi- 
tors, to  enable  them  to  sue  copartners  or  associations  by  the  name 
under  which  they  transact  business,  and  thus  avoid  the  difficulty 
of  obtaining  the  names  of  all  the  persons  forming  the  associations. 
"  The  statute  was  intended  to  enlarge,  not  to  restrict,  the  common 
law  in  regard  to  suits  against  copartners.  It  does  not  permit  part- 
ners or  associates  to  bring  an  action  in  their  common  name,  for  they 
have  the  means  of  knowing  who  the  associates  are." 

This  interpretation  of  the  statute  is  in  strict  accordance  with  its 
evident  purpose.  The  common-law  rule  that  the  parties  to  an 
action  must  be  either  natural  or  artificial  persons  has  been  modified 
in  this  state,  therefore,  only  as  respects  actions  against  unincor- 
porated associations.  An  examination  of  the  authorities  discloses 
that  in  many  of  the  states  authority  is  expressly  granted  in  such 
cases  to  sue  and  be  sued,  but  such  is  not  the  statute  in  this  state. 
The  TypothetiE  comes  within  the  rule,  and  it  is  clear  that  it  has  no 
legal  capacity  to  sue. 

The  rule  applies  equally  to  defendant  Bookbinders'  Union. 
That  is  an  unincorporated  association  similar  to  the  Typothetse, 
and  cannot  be  sued  in  its  common  name.  Many  of  the  cases  above 
cited  were  actions  against  such  associations,  in  which  the  rule  of 
the  common  law  was  apphed.  See  also  22  Enc.  PI.  &  Pr.  242, 
where  it  is  said  that  an  unincorporated  societ}^  or  association,  being 
considered  at  common  law  a  copartnership,  cannot,  in  the  absence 
of  statute,  be  sued  in  its  society  or  association  name;  but  all  the 
members  must  be  made  parties,  since  such  associations  have,  in  the 
absence  of  statutory  recognition,  no  legal  entity  apart  from  their 
members.  This  rule  applies  to  the  union,  unless  it  comes  within 
the  scope  of  the  statute  providing  for  actions  against  persons  doing 
business  under  a  common  name.  The  statute,  it  is  clear,  was  not 
intended  to  include  associations  of  this  character.  ,  Its  purpose 
was  to  authorize  the  courts  to  take  jurisdiction  over  unincorporated 
associations  engaged  under  a  common  name  in  some  sort  of  busi- 
ness in  which  property  is  bought  and  sold,  debts  contracted  — 
concerns  owning  and  holding  property,  and  incurring  pecuniary 
liability  —  and  not  associations  of  the  character  of  labor  unions, 
having  no  property,  engaged  in  no  business  occupation,  in  a  proper 
sense  of  the  term,  and  whose  only  function  is  the  promotion  of  the 


ST.    PAUL   TYPOTHETyE   V.    ST.    PAUL    BOOKBINDERS'    UNION      121 

interests  and  welfare  of  the  persons  who  are  members  thereof. 
Such  an  association  is  not  a  copartnership,  and  the  members  thereof 
are  Hable,  if  at  all,  on  the  contracts  of  the  association  on  the  law 
of  principal  and  agent.  Ehrmanntraut  v.  Robinson,  52  Minn. 
335,  54  N.  W.  188.  It  is  not  a  copartnership,  because  the  associa- 
tion is  engaged  in  no  business  enterprise.  .  .  . 

We  have  been  cited  to  no  case  where  the  court  has  entertained  an 
action  of  this  kind  against  an  association  in  its  common  name, 
where  the  point  has  been  raised,  and  our  research  has  disclosed  but 
one,  the  Taff  Vale  case,  \Yhich  arose  in  England  in  1901.  Taff 
Vale  V.  Amalgamated,  L.  R.  App.  Cas.  1901,  426.  It  was  there 
held  that  an  association  of  employees,  similar  to  that  of  the  Book- 
binders' Union,  might  be  sued  in  its  common  name.  But  the  de- 
cision was  placed  squarely  upon  the  ground  that  such  associations 
are  expressly  recognized  and  their  organization  provided  for  by  act 
of  parliament,  and,  though  the  act  authorizing  their  organization 
did  not  expressly  provide  that  they  might  sue  or  be  sued,  the  court 
held  that  the  right  arose  by  necessary  implication  from  the  fact 
of  legislative  recognition  and  the  provision  of  the  law  empowering 
the  association  to  own  and  hold  property.  Many  cases  have  been 
found  where  injunctions  have  been  issued  restraining  labor  unions, 
their  officers  and  members,  from  threatened  violations  of  the  law, 
but  cases  of  that  nature  are  not  in  point. 

It  follows  that  the  Tj'pothetse  has  no  legal  capacity  to  sue,  and 
cannot  maintain  the  action;  that  the  Bookbinders'  Union  cannot 
be  sued  in  its  association  name,  and  neither  the  Typothetse  nor  the 
West  Publishing  Company  can  maintain  the  action  against  it. 
Whether,  within  the  rule  announced  by  this  court  in  Ehrmann- 
traut V.  Robinson,  supra,  on  the  law  of  principal  and  agent,  a  cause 
of  action  is  stated  in  favor  of  the  West  Publishing  Company  against 
the  individual  members  of  the  union,  is  not  presented,  and  we  do 
not  determine  it.  The  demurrer  interposed  by  the  individual 
members  of  the  union  does  not  raise  the  question,  and  we  leave  it 
for  future  consideration,  should  it  ever  arise. 

The  order  of  the  court  below  overruling  the  demurrer  as  to  the 
Typothetse  is  reversed;  that  sustaining  the  demurrer  as  to  the 
West  Publishing  Company  against  the  union,  as  such,  is  affirmed.^ 

^  See  Karges  Furniture  Co.  v.  Amalgamated,  etc.,  Union,  165  Ind.  421; 
75  N.  E.  877,  2  L.  R.  A.  (n.  s.),  788,  6  Ann.  Cas.  829;  Pickett  v.  Walsh,  192 
Mass.  572,  78  N.  E.  753,  6  L.  R.  A.  (n.  s.),  1067,  7  Ann.  Cas.  638;  Saunders  v. 
Adams  Express  Co.,  71  N.  J.  L.  270,  57  Atl.  899;  s.c.  71  N.  J.  L.  520,  58  Atl. 
1101;    Dicey,  Parties,  p.  266.      But  see  Taff  Vale  Railway  v.  Amalgamated 


122  PARTIES 


'^..z"'^ 


\ 


\ 


Section  II. 

Joinder  of  Parties 

A.   Plaintiffs. 

/»  STARRETT  v.   GAULT  et  al.  ^ 

Supreme  Court  of  Illinois.     1897. 

[Reported  165  Illinois,  99.] 

Cartwright,  J.  Appellees  sued  appellant  for  professional  ser- 
vices rendered  and  costs  advanced  by  them  as  her  attorneys.  She 
;,pleaded  the  general  issue  and  set-off,  and  there  was  a  trial  resulting 
in  a  judgment  for  appellees  for  $1500  and  costs.  That  judgment 
the  Appellate  Court  affirmed. 

One  of  the  defenses  at  the  trial  was,  that  there  was  a  misjoinder 
of  plaintiffs,  and  that  their  employment  as  attorneys  was  several, 
and  not  joint.  Plaintiffs  proved  that  upon  the  death  of  defend- 
ant's husband  she  employed  the  plaintiff  Thomas  H.  Gault  as  her 
attorney,  and  at  his  request  she  also  employed  the  plaintiff  J.  Mc- 
Kenzie  Cleland  a  few  days  later  to  assist  Gault.  The  services  in 
question  were  rendered  in  the  administration  of  her  husband's 
estate  in  the  probate  court,  and  in  litigation  in  other  courts  con- 
cerning her  personal  interests.  Plaintiffs  were  not  partners  and 
had  no  business  relations.  Cleland  was  a  partner  with  another 
attorney,  and  the  offices  of  that  firm  were  connected  with  the  office 
occupied  by  Gault.  In  performing  the  services  for  defendant  they 
sometimes  acted  separately  and  sometimes  both  took  part.  She 
had  two  other  attorneys,  who  acted  for  her  in  some  of  the  suits  and 
assisted  in  litigation  with  one  or  both  of  the  plaintiffs.  Moneys 
were  advanced  from  time  to  time  by  the  plaintiffs,  separately,  out 
of  their  own  individual  means.  There  was  no  joint  fund  held  or 
used  for  such  advances  nor  was  there  any  community  of  interest 
in  the  money  advanced.  She  paid,  at  different  times,  different 
sums  of  money  to  each  of  them,  for  which  separate  individual 
receipts  were  given.  The  jury  returned  a  general  verdict  for 
plaintiffs,  assessing  their  damages  at  $1500,  and  also  the  following 
special  findings: 

Society  of  Railway  Servants,  [1901]  A.  C.  426;  Russell  &  Sons  v.  Stampers,  etc., 
Union,  57  Misc.  (N.  Y.),  96,  107  N.  Y.  Supp.  303;  Schwarcz  v.  International 
Ladies'  Garment  Workers'  Union,  68  Misc.  (N.  Y.),  528,  124  N.  Y.  Supp.  968. 
On  the  question  of  waiver,  see  Spaulding  Manufacturing  Co.  v.  Godbold,  92 
Ark.  63,  121  S.  W.  1063,  29  L.  R.  A.  (n.  s.),  282,  19  Ann.  Cas.  947.  —  Ed. 


(J C^    *^^  STARRETT   V.    GAULT  123 

1.  "  Was  the  plaintiff  Gault  individually  employed  by  the  de- 
fendant, generally  and  specially,  for  all  the  professional  services 
in  the  management  of  the  business  affairs  of  the  defendant  which 
have  been  presented  in  this  case  as  having  been  performed  by  both 
the  plaintiffs,  and  did  he  render  his  services  in  such  matters  under 
such  original  employment  ?  ■ —  A.   Yes. 

2.  "  Was  the  plaintiff  Cleland  expressly  or  imphedly  employed, 
by  a  subsequent  and  distinct  agreement,  to  assist  in  the  perfor- 
mance of  the  professional  services  aforesaid,  and  if  so,  was  he  em- 
ployed by  the  defendant  or  by  the  plaintiff  Gault  ? —  A.  Yes;  by 
the  defendant." 

The  defendant  thereupon  moved  the  court  that  judgment  be 
entered  in  her  favor  upon  the  special  findings,  but  the  motion  was 
denied,  and  the  court,  after  overruling  a  motion  for  a  new  trial, 
entered  judgment  on  the  general  verdict. 

If  the  conclusion  of  law  from  the  special  findings  is  that  the 
damages  sued  for  resulted  from  a  breach  of  contracts  made  with 
the  plaintiffs  severally,  and  not  a  joint  contract  wath  both,  then 
the  defendant's  motion  should  have  been  sustained.  A  contract 
with  plaintiffs  jointly  is  a  different  thing  from  two  contracts  with 
them  severally.  The  general  verdict  was  a  finding  that  the  alleged 
joint  contract  had  been  proved,  and  special  findings  that  there  was 
not  such  contract  would  be  irreconcilably  inconsistent  with  such 
general  verdict.  Neither  of  the  plaintiffs  would  have  any  right  to 
sue  on  a  contract  in  which  he  had  no  legal  interest,  and  it  would 
make  no  cUfference  that  one  or  the  other  of  them  had  a  legal  right 
as  to  each  of  the  different  charges  or  advances,  so  that  in  combina- 
tion their  rights  would  cover  all.  If  plaintiffs  sue  as  joint  contrac- 
tors they  must  show  a  joint  interest  in  the  contract.  Snell  v. 
DeLand,  43  111.  323.  In  that  case  it  was  further  said  (p.  326) : 
"  It  is  a  rule  as  old  as  the  science  of  pleading  itself ,  that  in  declaring  , 

jn_actions  on  contracts  there  must  not  be  too  f ej^or  jtoo_m[my^     W  (r^ , 
plaintiffs^   If  there  be,  it  is  fatal  to  a  recovery. "^'^  Nor  is  this  de- 
fense of  a  merely  technical  character.     Proof  of  several  contracts 
with  the  plaintiffs  would  not  support  the  allegations  of  the  declara- 
tion, and  the  rights  and  obligations  of  the  parties  would  be  different. 

Accordirig^to^theiirst  special  finding  the  contract  with  Gault  was 
made  with  him  individually,  for  all  the  professional  services  proved, 
and  he  rendered  his  services  under  that_contract._  Cleland  had  no 
interest  whatever  int^hatM:?q^ntra(^)yJts  terms,  and  it  is  not  claimed 
that  he  gained  any  by  virtue  of  any  partnership  or  relation  with 
Gault.      He  had  no  interest  in  or  relation  to  the  undertaking  of 


3,       (%f-^  '    '  ■    PARTIES  '^     '^"*^ 


Gault  to  render  his  services  for  defendant.  From  the  second 
special  finding  it  results  that  the  plaintiff  Cleland  was  subsequently 
employed  by  a  separate  contract  with  defendant  to  assist  in  the 
performance  of  the  professional  services  rendered,  and  Gault  was 
not  in  any  manner  concerned  in  that  contract.  It  gave  Cleland ' 
no  interest  in  Gault's  contract  made  a  few  days  before.  Neither 
would  be  affected  by  the  failure  of  the  other  to  perform  his  con- 
tract nor  by  the  manner  or  degree  of  skill  with  which  he  might  per- 
form it.  The  fact  that  Cleland  was  hired  to  assist  Gault  would 
not  give  either  any  interest  in  the  contract  of  the  other.  It  would 
scarcely  be  claimed  that  the  employees  of  a  common  master  could 
sue  jointly  merely  because  engaged  in  the  same  work  and  assisting 
each  other  in  its  execution.  Cleland  assisted,  as  was  to  be  ex- 
pected, because  that  was  what  he  was  hired  to  do,  butjOjExe-^^soX 
elation  in  a  common  task  did  not  create  a  joint  contractus  That, 
fact  would  not  enable  defendant  to  hold  either  liable  for  the  de- 
ficiencies or  neglects  of  the  other.  The  fact  that  defendant  filed  a 
plea  of  set-off  cannot  affect  the  question. 

The  special  findings  were  inconsistent  with  the  general  verdict, 
and  it  was  error  to  deny  defendant's  motion. 

The  judgments  of  the  Appellate  Court  and  circuit  court  will  be 
reversed,  and  the  cause  will  be  remanded  to  the  circuit  court  for 
another  trial.  Reversed  and  remanded. 


^    THE  HOME  INSURANCE  COMPANY  v.   OILMAN, 

Executor,  et  al. 

Supreme  Court  of  Indiana.      1887.      ^-^f^-"-^ 
[Reported  112  Indiana,  7.] 

Mitchell,  J.^  A  policy  of  fire  insurance  was  issued  to  George 
Sapp,  the  alleged  owner  of  a  store  building,  stipulating  for  insur- 
ance against  loss  or  damage  by  fire  to  the  amount  of  fifteen  hun- 
dred dollars. 

The  policy  contained  the  foUoAving  stipulation:  "  Loss,  if  any, 
under  this  policy,  payable  to  W.  W.  Oilman,  executor  of  the 
Reynolds  estate,  as  his  interest  may  appear." 

The  complaint  alleged  that  at  the  time  the  policy  was  issued, 
to  wit,  on  the  14th  day  of  February,  1885,  as,  also,  when  the  prop- 

'  A  part  of  the  opinion  is  omitted.  —  Ed. 


THE    HOME    INSURANCE    COMPANY   V.    GILMAN  125 

erty  insured  was  destroyed  by  fire  —  February  16th,  1885,  — 
Sapp  was  the  owner  thereof,  in  fee  simple,  and  that  Gihnan  held  a 
mortgage  thereon  to  secure  a  debt  due  him  from  Sapp,  amounting 
to  nine  hundred  dollars.  It  also  alleged  that  the  amount  of  the 
loss  exceeded  the  amount  of  the  debt  due  Oilman.  The  appellant 
contends  that  Sapp  and  Oilman  cannot  maintain  a  joint  action  on 
this  pohcy,  and  hence  that  the  court  erred  in  overruling  the  de- 
murrer to  the  complaint. 

The  learned  court  below  was  of  opinion  that  an  action  might 
be  so  maintained,  and,  after  hearing  the  proofs,  rendered  judgment 
"  that  the  plaintiffs  do  have  and  recover  of  and  from  the  defendant 
the  sum  of  $1,537.51,  and  that  of  said  sum  William  W.  Oilman,  as 
executor  of  the  estate  of  Henry  Reynolds,  deceased,  shall  first 
recover  the  sum  of  $949.51,  and  the  plaintiff  Oeorge  R.  Sapp  shall 
recover  the  residue." 

The  question  is  thus  presented,  whether  aft£iL-tli£_loss_Gijman 
and^app  had  such  a  joint  interest  in  the  policy  as  entit]^them,to_.  - 
join  as  plaintiffs  in  an  action  thereon  ? 

Section  262,  R.  S.  1881,  provides  that  "  All  persons  having  an 
interest  in  the  subject  of  the  action,  and  in  obtaining  the  relief 
demanded,  shall  be  joined  as  plaintiffs,  except  as  otherwise  pro- 
vided ";  and  by  section  269  of  the  code  it  is  enacted  that  "  Of  the 
parties  in  the  action,  those  wlio_axg  united  in  interest  must  be 
^^joined  as  plaintiffs  or  defendants,"  etc. 

Section  568  provides  that  judgment  may  be  given  for  or  against 
one  or  more  of  several  plaintiffs,  or  for  or  against  one  or  more  of 
several  defendants,  and  that  the  "  Judgment  may,  .  .  .  when  the 
justice  of  the  case  requires  it,  determine  the  ultimate  rights  of  the 
parties  on  each  side,  as  between  themselves." 

These  statutes  must  be  deemed  to  have  modified  the  extremely 
technical  and  arbitrary  rules  of  the  common  law,  in  respect  to 
parties  and  the  rendition  of  judgments.  Their  effect  is,  substan- 
tially, to  adopt  the  equitable  rules  of  the  chancery  courts  in  regard 
to  these  subjects,  and  they  require  the  application  of  those  rules 
to  each  case  as  it  arises,  whether  it  be  of  a  legal  or  equitable  char- 
acter. Tate  V.  Ohio,  etc.,  R.  R.  Co.,  10  Ind.  174;  Ooodnight  v. 
Ooar,  30  Ind.  418;  Pom.  Rem.,  sections  200,  215;  1  Works  Pr.  98, 
99. 

At  the  common  law  it  was  essential  that  all  those  who  appeared 
on  the  record  as  plaintiffs  should  have  an  interest  in  the  whole  of 
the  recovery,  so  that  a  judgment  in  solido  could  be  rendered  in 
favor  of  all  the  plaintiffs,  as,  also,  against  all  the  defendants. 


126  PARTIES 

This  rule,  never  founded  upon  any  substantial  reason,  has  been 
modified  by  the  provisions  of  the  code  already  referred  to.  Moyer 
V.  Brand,  102  Ind.  301,  and  cases  cited. 

While  it  has  often  been  decided,  under  the  code,  that  all  persons 
who  join  as  plaintiffs  must  have  an  interest  in  the  subject  of  the 
action,  and  that  it  is  necessary  that  they  be  united  in  interest 
(Dill  V.  Voss,  94  Ind.  590;  Faulkner  v.  Brigel,  101  Ind.  329,  and 
cases  cited),  it  does  not  follow  that  the  interest  of  all  must  be  equal, 
or  that  their  interests  may  not  be  legally  severable.  It  is,  of  course, 
not  meant  that  two  or  more  persons  having  separate  causes  of 
action,  although  they  arise  out  of  the  same  transaction,  and  be 
against  the  same  defendant,  may  nevertheless  unite  in  the  same 
action.  Where,  however,  there  is,  as  was  said  in  Tate  v.  Ohio,  etc., 
R.  R.  Co.,  supra,  "  one  common  interest  among  all  the  plaintiffs, 
centering  in  the  point  in  issue  in  the  cause,  the  objection  of  improper 
parties  cannot  be  maintained,"  even  though  the  amount  of  their 
several  interests  be  unequal,  and  even  though  they  may  be 
entitled  to  several  judgments,  in  respect  to  the  amounts  to  be 
recovered.  All  must  have  some  common  interest  in  respect  to  the 
subject-matter  of  the  suit,  and  each  must  be  interested  that  all 
have  relief  in  respect  to  that  subject-matter.  This  creates  such  a 
unity  of  interest  as  entitles  parties  so  related  to  a  particular  subject- 
matter  to  unite  as  plaintiffs  in  an  action.  Martin  v.  Davis,  82  Ind. 
38. 

In  the  case  before  us  both  parties  plaintiff  had,  by  contract,  a 
common  interest  that  a  recovery  should  be  had  upon  the  policy  of 
insurance.  It  was  the  interest  of  each  that  the  other  should 
recover,  as  well  as  that  he  should  recover  himself.  A  recovery  by 
the  mortgagee  enured  to  the  benefit  of  his  co-plaintiff,  in  that  it 
established  a  common  right.  The  amount  recovered  by  the  mort- 
gagee went  in  liquidation  of  the  mortgagor's  debt,  while  a  recovery 
by  the  latter  had  a  like  effect  upon  the  common  right,  and  entitled 
the  former  to  receive  payment  out  of  the  sum  recovered  as  his  inter- 
est in  the  fund  might  appear.  Each  was,  tlu'r(^fore,  interested  in_ 
the  relief  sought  by  the  other,  and  as  both  a])peared  upon  the  face  of 
the  policy  to  have  a  common  interest,  neither  being  entitled  to  the 
whole  fund,  it  was  proper  for  the  protection  of  the  defendant  that 
both  should  be  parties.  "  It  was  not  so  material  whether  they 
were  plaintiffs  or  defendants,  so  that  their  rights  under  the  con- 
tract would  be  barred  by  the  event  of  the  suit."  Morningstar  v. 
Cunningham,  110  Ind.  328;  Durnham  v.  Hall,  67  Ind.  123;  May 
Ins.,  section  449. 


i^^^v*>a»*i^u  y^ 


^^\^ 


WILLOUGHBY    V.    WILLOUGHBY  127 


There  was  no  error  in  overruling  the  demurrer  to  the  com- 
plaint. .  .  .  Judgment  affirmed,  with  costs} 


^A-.-<-^ 


^  WILLOUGHBY  t;.  WILLOUGHBY. 

Superior  Court  of  Judicature  of  New  Hampshire. 

1830. 
[Reported  5  New  Hampshire,  244.] 

AssuMPiT.  The  first  count  alleged,  that  the  defendant,  at  H., 
on  the  25th  of  June,  1828,  by  his  note,  &c.  for  value  received, 
promised  Washington  Willoughby,  or  the  plaintiff,  to  pay  either 
of  them,  $200  on  demand,  with  interest. 

The  second  count  alleged,  that  the  defendant,  at  H.  &c.,  by  his 
note,  &c.,  for  value  received,  promised  the  plaintiff  to  pay  him 
$200,  on  demand,  wdth  interest. 

There  was  a  third  count,  alleging  that  the  defendant,  at  H.,  by 
his  note,  &c.,  for  value  received,  promised  to  pay  Washington  or 
Joseph  Willoughby,  $200  on  demand,  \ai\\  interest. 

1  In  the  following  cases  it  was  held  that  all  the  plaintiffs  had  an  interest  in 
the  subject  of  the  action  and  in  obtaining  the  rehef  demanded,  and  a  joinder 
was  allowed:  Mcintosh  v.  Zaring,  150  Ind.  301,  49  N.  E.  164  (action  by  promi- 
sees in  several  contracts  to  avoid  settlement  for  fraud) ;  Graves  v.  Merchants', 
etc.,  Ins.  Co.,  82  la.  637,  49  N.  W.  65  (action  on  pohcy  of  insurance  covering 
separate  goods  of  the  several  plaintiffs) ;  Wilson  v.  Youngman,  96  Minn.  288, 
104  N.  W.  946  (action  for  relief  on  account  of  fraud  in  inducing  a  joint  pur- 
cha.se  of  land  by  the  plaintiff ) ;  Trompen  v.  Yates,  66  Neb.  525,  92  N.  W.  647 
(action  by  successive  morgagees  of  the  same  goods,  jointly  in  possession  thereof, 
against  a  converter  thereof);  Loomis  v.  Brown,  16  Barb.  (N.  Y.),  325  (action 
by  all  the  obligees  upon  an  injunction  bond,  the  claims  differing  in  character 
and  amount);  Winne  v.  Niagara  Fire  Ins.  Co.,  91  N.  Y.  185  (Uke  the  principal 
case);  Rutledge  v.  Corbin,  10  Oh.  St.  478  (action  on  an  attachment  undertak- 
ing by  the  payees  and  subsequent  attaching  creditors,  some  of  whom  had 
attached  only  part  of  the  goods). 

In  the  following  cases  it  was  held  that  all  the  plaintiffs  had  not  an  interest 
in  the  subject  of  the  action  and  in  obtaining  the  relief  demanded,  and  a  joinder 
was  disallowed:  Gray  v.  Roth.schild,  48  Hun  (N.  Y.),  596,  1  N.  Y.  Supp.  299, 
affirmed  s.  c,  112  N.  Y.  668,  19  N.  E.  847  (action  for  damages  by  vendors  of 
separate  goods  against  fraudulent  vendee) ;  Nagel  v.  Lutz,  41  N.  Y.  App.  Div. 
193,  58  N.  Y.  Supp.  816;  Lawrence  ;;.  McKelvey,  80  N.  Y.  App.  Div.  514,  81 
N.  Y.  Supp.  129.  See  Pomeroy,  Code  Remedie.s,  4th  ed.,  pp.  161-176,  193- 
221. 

For  the  rule  in  equity  see  Commonwealth  v.  Mechanics  Ins.  Co.,  120  Mass. 
495;  Bradley  v.  Bradley,  165  N.  Y.  183,  58  N.  E.  887;  Cloyes  v.  Middlebury 
Electric  Co.,  80  Vt.  109,  66  Atl.  1039,  11  L.  R.  A.  (n.  s.),  693.  —  Ed. 


128  PARTIES 

The  cause  was  tried  here  upon  the  general  issue,  at  February 
term,  1830,  when  the  plaintiff  offered  in  evidence  to  the  jury,  a 
note,  in  the  following  words :  — 

Hollis,  June  25,  1828.  —  For  value  received  I  promise  to  pay 
Washington  or  Joseph  Willoughby,  $200  on  demand,  with  interest. 

John  Willoughby. 

The  court  being  of  opinion  that  the  note,  upon  the  face  of  it, 
showed  a  contract  with  Washington  and  Joseph  Willoughby,  and 
not  with  either  separately,  nonsuited  the  plaintiff,  but  saved  the 
question  for  further  consideration. 

By  the  court.  We  are  of  opinion,  that  the  note  in  this  case  is 
evidence  of  a  contract  with  W.  and  J.  Willoughby,  and  that  or  in 
the  note  must  be  understood  to  mean  and. 

Such  being  the  purport  of  the  note  upon  the  face  of  it,  this  action 
cannot  be  maintained  upon  it,  and  the  nonsuit  must  stand.  Blanc- 
kenhagen  and  another  v.  Blandell,  2  B.  &  A.  417,  was  an  action  on 
a  note  which  was  described  in  the  declaration  as  payable  to  J.  P. 
Damer,  or  the  plaintiffs,  and  the  suit  was,  like  this,  brought  in  the 
name  of  the  plaintiffs  without  joining  J.  P.  Damer.  The  cause 
was  decided  in  favor  of  the  defendant  upon  a  demurrer  to  the 
declaration.  But  Bailey,  J.,  intimated  that  an  action  might  be 
maintained  upon  the  note  in  the  name  of  all  the  payees. 

Judgment  on  the  nonsuit.^ 

1  See  also  Scott  v.  Godwin,  1  Bos.  &  P.  67;  Petrie  v.  Bury,  3  Barn.  &  C.  353; 
Wetherell  v.  Langston,  1  Exch.  634;  Blanchard  v.  Dyer,  21  Me.  111.  See 
Dicey,  Parties,  p.  104  (rule  13). 

For  decisions  under  the  code  provision  that  of  the  parties  to  the  action, 
those  who  are  united  in  interest  must  be  joined  as  plaintiffs  or  defendants, 
see  Slaughter  v.  Davenport,  151  Mo.  26,  51  S.  W.  471;  Burkett  v.  Lehmen- 
Higginson  Grocery  Co.,  8  Okla.  84,  56  Pac.  856;  Pomeroy,  Code  Remedies, 
4th  ed.,  pp.  164,  204. 

It  is  sometimes  a  difficult  problem  of  the  substantive  law  of  contracts  to 
determine  whether  the  rights  of  the  promisees  are  joint  or  several.  See 
Anderson  v.  Martindale,  1  East,  497;  Sorsbie  v.  Park,  12  Mees.  &  W.  146; 
Capen  v.  Barrow.s,  1  Gray  (Mass.),  376;  Dicey,  Parties,  p.  105.  The  same 
contract  cannot  be  so  framed  as  to  give  the  promisees  joint  and  several  rights. 
Slingsby's  Case,  5  Co.  18b;  Bradburne  v.  Botfield,  14  Mees.  &  W.  559.  See 
Eveleth  v.  Sawyer,  96  Me.  227,  52  Atl.  639;  Dicey,  Parties,  p.  110  (rule  14). 
—  Ed. 


GAZYNSKI   V.    COLBURN  129 


M^ 


l_  GAZYNSKI  and  Wife  v.  COLBURN. 
Supreme  Judicial  Court  of  Massachusetts.     1853. 

[Reported  11  Cushing,  10.] 

Slander,  The  declaration  contained  two  counts;  in  each  of 
which  it  was  alleged  that  the  defendant  uttered  certain  defamatory 
words  of  and  concerning  the  plaintiffs.  After  a  general  verdict  for 
the  plaintiffs  in  the  court  of  common  pleas,  Wells,  C.  J.,  arrested 
judgment,  because  ''  the  plaintiffs  were  joined  in  the  same  suit  for 
a  joint  slander  upon  both,  and  joint  damages  were  demanded  and 
given  for  the  joint  slander  of  both."  The  plaintiffs  excepted  to 
such  decision. 

Metcalf,  J.  The  judgment  in  this  case  was  rightly  arrested. 
Each  count  in  the  declaration  alleges  that  the  defendant  spoke 
certain  words  of  and  concerning  the  plaintiffs,  by  means  of  which 
they  have  been  brought  into  public  scandal  and  disgrace,  and 
greatly  injured  in  their  good  name.  Theyjiave  instituted  a  joint 
action  for  a  tort  that  is  several  and  not  joint.  Separate  actions 
should  have  been  brought;  one  by  the  husband  alone,  for  the  injury 
to  himyand  one  by  the  husband  and  wife,  for  the  injury  to  her.^  V 
Smith  yrlTobson,  Style,  112;  Broom  on  Parties,  237. 

It  has  always  been  held  that  when  words  are  spoken  of  two  or 
more  persons,  they  cannot  join  in  an  action  for  the  words,  because 
the  wrong  done  to  one  is  no  wrong  to  the  other.  The  case  of  hus- 
band and  wife  is  not  an  exception  to  this  rule.  The  exceptions  to 
it  are  the  case  of  words  spoken  of  partners  in  the  way  of  their  trade, 
and  the  case  of  slander  of  the  title  of  joint  owners  of  land.  Dyer, 
19  a;  Burges  v.  Ash  ton,  Yelv.  128;  Sheppard's  Actions  upon  the 
Case  for  Slander,  52;  1  Walford  on  Parties,  514-516;  Ebersoll  v. 
Krug,  3  Binn.  555;  Hart  v.  Crow,  7  Blackf.  351. 

Exceptions  overruled} 

1  See  Smith  v.  Cooker,  Cro.  Car.  512;  Barrett  v.  Collins,  10  Moore,  446; 
Dicey,  Parties,  p.  380  (rule  80). 

For  decisions  under  the  codes,  see  Rhoads  v.  Booth,  14  la.  575  (malicious 
prosecution);  Hinkle  v.  Davenport,  38  la.  355  (slander);  Bort  v.  Yaw,  46  la. 
323  (deceit);  Morton  v.  Western  Union  Tel.  Co.,  130  N.  C.  299,  41  S.  E.  484 
(action  against  telegraph  company  for  causing  mental  anguish);  Hellams  v. 
Switzer,  24  S.  C.  39  (action  by  owners  of  adjoining  lots  for  damages  for  nui- 
sance). —  Ed, 


f^^j:i^  "   ^^-^^-— 


130  PARTIES 

l^   LE   FANU  and   BULL  v.  MALCOMSON   and   Others.    ^Xu>^ 
House  of  Lords.     1848. 
[Reported  1  House  of  Lords  Cases,  637.] 

This  was  an  action  of  libel.  The  plaintiffs  in  the  action  were 
Messrs.  Malcomson,  the  owners  of  a  factory  in  the  county  of  Water- 
ford;  the  defendants,  Messrs.  Le  Fanu,  were  the  proprietors  of 
The  Warder  and  The  Statesman  newspapers;  and  the  alleged  libel 
was  published  in  the  former  journal  on  the  1st  of  June,  and  in  the 
latter,  on  the  4th  of  June,  1844.  .  .  . 

In  the  published  article  the  plaintiffs  as  partners  owning  and 
operating  a  cotton  factory  were  accused  of  mistreating  their 
operatives.  The  plaintiffs  alleged  that  as  a  result  of  the  publica- 
tion of  the  article,  various  persons  refused  to  deal  with  them. 
The  declaration  contained  thirteen  counts.  The  defendants 
pleaded  the  general  issue  and  two  special  pleas,  to  which  the 
plaintiff  replied.  A  general  verdict  with  5001.  damages  was  found 
for  the  plaintiffs,  and  judgment  was  entered  thereon.  Upon  this 
judgment  the  defendants  brought  a  writ  of  error  to  the  Court  of 
Exchequer  Chamber  in  Ireland,  and  the  judgment  of  the  Court  of 
Exchequer  was  affirmed.  The  present  writ  of  error  was  then 
brought.^ 

The  Lord  Chancellor  (Cottenham).  .  .  .  The  complaint 
is  made  by  the  plaintiffs  in  their  character  of  owners  and  conduc- 
tors of  a  factory,  and  in  some  of  the  counts,  it  is  now  said,  have 
made  the  complaint  as  if  there  was  an  injury  to  themselves  indi- 
vidually, and  not  to  them  in  their  character  as  joint  proprietors  of 
the  factory.  It  is  very  properly  admitted  that,  if  the  count  con- 
tains a  complaint  of  that  which  affects  them  in  their  joint  character 
as  proprietors,  though  it  may  also  make  a  complaint  of  certain 
matters  which  may  affect  them  individually,  inasmuch  as  the 
complaint  of  that  which  affects  them  in  their  joint  character  may  be 
sufficient  to  support  the  action,  the  additional  fact  that  the  count 
also  makes  another  complaint  which  cannot  be  maintained,  is  not 
sufficient  to  vitiate  the  judgment  that  has  been  pronounced. 
Therefore,  in  looking  through  these  counts,  we  must  see  whether 
there  is  anything  which  contains  matter  applying  to  the  plaintiffs 
individually,  and  not  to  their  joint  character. 

1  The  statement  of  facts  is  abridged  and  a  i)art  of  the  opinion  of  the  Lord 
Chancellor  and  the  concurring  opinion  of  Lord  Campbell  are  omitted.  — 
Ed. 


LE  FANU  and  BULL  V.    MALCOMSON  131 

I  have  looked  through  these  counts,  and  it  appears  to  me,  that 
although  there  may  be  expressions  which,  taken  by  themselves, 
refer  to  the  individual  character  of  some  of  the  plaintiffs,  they  con- 
tain matter  which  shews  that  the  complaint  is  addressed  to  their 
character  of  joint  proprietors  of  the  factory. 

The  fifth  count  states  that  the  defendants  "  did  compose  and 
publish,  &c.,  a  certain  other  false,  wicked,  scandalous,  and  defama- 
tory libel,  of  and  concerning  the  said  plaintiffs,  and  of  and  concern- 
ing the  said  factory  of  the  said  plaintiffs,  and  of  and  concerning  the 
manufacturing  of  cottons,  hnens,  and  other  fabrics  by  the  said 
plaintiffs  in  the  said  factory,  and  of  and  concerning  the  said  trade 
and  calling  of  the  said  plaintiffs." 

Can  it  be  contended  that  this  is  a  complaint  made  of  injury  sus- 
tained by  the  plaintiffs  in  their  individual  character  ?  Is  it  not  in 
terms  descriptive  of  the  injury  alleged  to  be  sustained  by  them  in 
their  character  of  proprietors  and  managers  of  the  factory  in  ques- 
tion ?  It  seems  to  me  to  be  clear  that  it  is  so,  and  that  although 
there  may  be  expressions  which  ought  not  to  be  there,  if  the  com- 
plaint was  intended  to  be  made  of  injury  sustained  by  them  in 
their  character  of  joint  proprietors,  it  is  quite  sufficient  on  every 
one  of  these  counts  to  shew  that  the  complaint  was  intended  to 
apply  to  the  property  which  belonged  to  them  jointly,  in  respect 
of  which,  therefore,  they  are  entitled  to  support  an  action  by  them- 
selves as  proprietors. 

On  these  grounds,  on  the  two  points  which  were  relied  on  as  ob- 
jections to  the  judgment  of  the  Court  below,  I  am  of  opinion  that 
the  judgment  of  the  Court  below  should  be  affirmed.  .  .  . 

Judgment  affirmed,  with  costs} 

1  Medbury  v.  Watson,  6  Mete.  (Mass.),  246,  39  Am.  Dec.  726  (deceit), 
accord.  Compare  Barratt  v.  Collins,  10  Moore,  446  (malicious  arrest).  See 
Dicey,  Parties,  p.  384  (rule  84). 

For  decisions  under  the  codes,  see  Cochrane  v.  Quackenbush,  29  Minn.  376, 
13  N.  W.  154  (malicious  pro.secution) ;  Peaks  &  Co.  v.  Graves,  25  Neb.  235, 
41N.W.  151  (deceit). 

One  partner  can  sue  alone  for  damage  suffered  by  him  individually.  Harri- 
son V.  Bevington,  8  Car.  &  P.  708.  —  Ed. 


132  PARTIES 


BOOTH  and  Others  v.  BRISCOE. 

CouET  OF  Appeal.     1877. 
[Reported  2  Queen'' s  Bench  Division,  496.] 


pL-^ 


The  plaintiffs  were  the  eight  trustees  of  certain  charities  at  Out- 
well,  near  Wisbeach,  and  brought  an  action  against  the  Rev.  J.  G. 
Briscoe,  rector  of  Outwell,  for  a  libel  contained  in  a  letter,  written 
and  published  by  him  in  the  Wisbeach  Chronicle,  commenting  on 
the  improper  management  of  the  charities  by  "  the  trustees."  The 
action  was  tried  at  Westminster  on  the  12th  of  April,  1877,  before 
Field,  J.,  when  a  verdict  was  given  for  the  plaintiffs  with  40s. 
damages.  The  defendant  applied  to  the  Queen's  Bench  Division 
to  grant  a  new  trial,  on  the  ground  that  the  verdict  was  against  the 
weight  of  evidence;  or  to  enter  judgment  for  the  defendant,  on  the 
ground  that  the  occasion  on  which  the  libel  was  published  was 
privileged. 

The  Court  (Mellor  and  Lush,  JJ.)  refused  the  application  on 
both  points. 

The  defendant  appealed.  ... 

Bramwell,  L.  J.,  delivered  the  judgment  of  the  Court  (Lord 
Coleridge,  C.  J.,  and  Bramwell  and  Brett,  L.  JJ.).  In  this  case  we 
think  that  the  appeal  should  not  be  allowed.  The  principal  ques- 
tions were  decided  upon  the  hearing,  and  it  was  in  reference  to  a 
difficulty  made  by  myself  that  we  further  considered  the  case.  We 
say  generally  that  we  are  satisfied  that  there  was  no  misdirection. 
Then  as  to  a  new  trial,  the  verdict  being  for  less  than  40s.,  we  con- 
sider the  rule  to  be  still  in  existence,  that  where  the  damages  are 
under  20L  a  new  trial  ought  not  to  be  granted  on  the  ground  that 
the  verdict  was  against  the  evidence.  The  only  remaining  mattei*^ 
was  a  doubt  I  had  suggested,  whether  these  eight  plaintiffs,  if  they 
had  any  cause  of  action,  had  not  eight  separate  causes  of  action, 
and  whether  they  could  be  joined  as  plaintiffs.  I  am  still  of  opin- 
ion they  had  eight  causes  of  action,  and  that  they  might  have 
brought  eight  actions;  and  the  question  is  whether  under  the 
Judicature  Act  any  difference  has  been  made  so  that  they  can 
bring  one  action.  Where  a  tort  has  been  done,  the  tort  is  a  separate 
tort  to  each  man  who  complains.  If  indeed  there  were  a  joint 
tort,  for  instance,  slander  of  several  persons  in  partnership,  the 
persons  injured  would  have  joined  and  maintained  the  action,  but 
could  have  maintained  the  action  for  the  joint  damage  only.  Here 
there  is  no  joint  damage.     Each  man's  character,  if  there  is  a  hbel, 


7 


BOOTH    V.    BRISCOE  133 

has  been  separately  libelled.  There  is  no  doubt,  therefore,  that 
prior  to  the  Judicature  Act  this  proceeding  would  have  been  erro- 
neous, but  it  seems  to  us  that  under  Order  XVI.,  Rule  1,  these 
plaintiffs  may  well  join  as  plaintiffs:  "  All  persons  may  be  joined 
as  plaintiffs  in  whom  the  right  to  any  relief  claimed  is  alleged  to 
exist,  whether  jointly,  severally,  or  in  the  alternative."  Now  it 
seems  to  me  that  that  word  "  severally  "  must  comprehend  the 
present  case.  I  think  therefore  that  they  may  very  well  join;  and 
if  several  actions  had  been  brought,  a  consoUdation  might,  if  there 
was  any  convenience  in  it,  have  been  ordered  by  an  application 
under  the  other  rules.  But  although  they  might  all  join,  I  think, 
as  their  damages  are  several,  their  damages  ought  to  have  been 
severally  assessed,  instead  of  which,  40.s.  has  been  given  to  the 
whole  of  them.  But  who  is  to  complain  of  that  ?  I  do  not  think 
that  the  defendant  will  suffer  by  it,  because  the  probabilities  are 
that  if  the  damages  had  been  severally  assessed  there  would  have 
been  eight  times  40s.  damages  given.  At  all  events,  he  does  not 
shew  that  he  is  injured  by  it;  and  if  the  plaintiffs  have  no  objection 
to  take  the  40.s.  and  divide  it  amongst  themselves,  it  seems  to  me 
that  the  defendant  has  no  right  to  complain.  As  far,  therefore,  as 
this  is  concerned,  I  see  no  difficulty  in  saying  that  this  verdict  and 
judgment  should  stand. ^  Judgment  affirmed. 

1  For  the  present  form  of  Order  XVI.,  Rule  1,  see  infra,  p.  165.  The 
words  there  printed  within  brackets  formed  no  part  of  the  rule  previous  to 
October,  1896.  For  decisions  previous  to  the  change  in  the  rule,  see,  in  addi- 
tion to  the  principal  case,  Sandes  v.  Wildsmith,  [1893]  1  Q.  B.  771  (action  for 
separate  slanders  of  the  two  plaintiffs  who  were  mother  and  daughter) ;  Smurth- 
waite  V.  Hannay,  [1894]  A.  C.  494  (action  by  several  shippers  and  consignees 
against  ship-owners  for  short  delivery);  Peninsular  and  Oriental  Steam 
Nav.  Co.  V.  Tsune  Kijima,  [1895]  A.  C.  661  (action  by  several  persons  injured 
in  one  collision);  Carter  v.  Rigby,  [1896]  2  Q.  B.  113  (action  by  representatives 
of  several  persons  killed  in  one  accident  in  a  mine).  In  these  cases  it  was  held 
that  there  was  a  misjoinder  of  parties  plaintiff.  For  decisions  subsequent  to 
the  change  in  the  rule  see  Stroud  v.  Lawson,  [1898]  2  Q.  B.  44  (action  against  a 
company  and  its  directors  in  which  plaintiff  claimed  for  himself  damages  for 
fraud  in  inducing  him  to  buy  shares  in  the  company,  alleging  as  one  element 
of  the  fraud  that  the  defendants  had  declared  and  paid  a  dividend  on  the  shares 
of  the  company  when  there  were  no  profits,  and  seeking  on  behalf  of  himself 
and  all  other  shareholders  a  declaration  that  the  payment  of  the  dividend  was 
ultra  vires  and  illegal  and  a  judgment  for  the  repayment  of  the  amount  of  this 
di-\ndend)  in  which  the  joinder  was  disallowed.  In  the  following  cases  the 
joinder  was  allowed:  Drincqbier  v.  Wood,  [1899]  1  Ch.  393  (action  for  damages 
for  false  representation  in  a  prospectus  which  induced  the  several  plaintiffs  to 
buy  debentures);  Bedford  v.  Ellis,  [1901]  A.  C.  1  (action  to  assert  common 
right  to  use  cart  stands  in  a  market).  —  Ed. 


^5W 


]^34  PARTIES 

;     ST.   LOUIS  &   S.   F.   R.   CO.   v.  WEBB. 

v^oupREME  Court  of  Oklahoma.     1912. 

[Reported  36  Oklahoma,  235.] 

\^  Harrison,  C.     This  cause  was  originally  begun  in  the  justice 

court  of  Hugo  township,  Choctaw  county,  and  judgment  obtained 
for  $75.  Thereupon  an  appeal  was  taken  to  the  county  court  by 
the  railroad  company  and  judgment  there  rendered  against  the 
company  for  the  sum  of  $70,  from  which  judgment  the  railroad 
company  appeals. 

There  are  two  questions  involved,  either  of  which  would  necessi- 
tate a  reversal  of  the  judgment.  First.  Whether  the  plaintiff 
Webb,  was  the  sole  o^vner  or  a  joint  owner  of  the  horse  alleged  to 
have  been  killed.  Second.  The  insufficiency  of  the  evidence  as 
to  the  negligence  of  defendant.^ 

As  to  the  first  proposition,  it  is  shown  by  the  record  that  plaintiff, 
though  suing  in  his  own  name,  was  not  the  sole  owner  of  the  animal, 
for  the  killing  of  which  suit  was  brought,  but  that  a  half  interest  in 
such  animal  was  owned  by  one  A.  M.  Merrill,  and  that  the  court, 
though  requested  so  to  do  by  the  defendant,  refused  to  submit  the 
question  of  joint  ownership  to  the  jury.  The  plaintiff  alleged  that 
the  horse  in  question  belonged  to  him.  Mr.  Webb  testified  that 
Merrill  had  a  conditional  interest  in  the  stock,  but  that  he  was  to 
stay  a  certain  length  of  time,  and  did  not  stay  that  length  of  time; 
that  he  bought  back«Merriirs  conditional  interest,  but  the  record 
shows  that  it  was  bought  back  after  suit  was  begun.  Merrill 
testified  that  he  owned  an  indirect  one-half  interest  in  the  stock. 
The  record  fails  to  show  just  what  this  one-half  interest  was.  It 
might  justify  the  possible  inference  that  Merrill's  interest  was 
in  the  increase  of  the  stock,  but  fails  to  show  conclusively  what 
such  interest  was.  But  inasmuch  as  it  shows  some  interest  in 
Merrill,  and  inasmuch  as  Webb's  right  of  action  depended  upon 
whether  he  was  the  owner  of  the  stock  sued  for,  and  inasmuch  as 
there  was  a  controversy  as  to  whether  he  was  the  sole  owner  or 
whether  he  and  Merrill  were  joint  owners,  we  think  the  court 
erred  in  refusing  to  submit  this  question  to  the  jury. 

"  Persons  who  have  a  joint  interest  must  sue  jointly  for  an 
injury  to  such  interest.     Joint  owners  of  property  must  unite  as 

1  Only  the  part  of  the  opinion  relating  to  the  first  question  is  given.  —  Ed. 


e/^*^ 


BRAY   V.   RAYMOND 


nlaintiffs  in  one  action  for  an  injury  thereto  or  for  a  conversion 
thereof."      (15  PL  &  Pr.  544,  and  authorities  cited.)   .  .  . 

The  case  should,  therefore,  be  reversed  and  remanded. 

By  the  Court:     It  is  so  ordered.^ 


fi^yp 


l_    BRAY  V.   RAYMOND 
Supreme  Judicial  Court  of  Massachusetts 


1896. 


le  ^    y  f 


[Reported  166  Massachusetts,  146.]  ^ 

Morton,  J.^    This  was  an  action  of  replevin.     In  order  to  main-  ^ 
tain  it  the  plaintiff  was  bound  to  show,  as  the  court  instructed  the  /^ 
jury,  that  she  was  the  sole  owner  of  the  property  replevied.     Hart 
V.  Fitzgerald,  2  Mass.  509.     Fay  v.  Duggan,  1.35  Mass.  242.     Cor-  ^    y—        U 
coran  v.  White,  146  Mass.  329.     The  instructions  requested  were"*-^"*'^-^^'''"''*^^ 
to  the  effect  that  if  the  officer  attached  and  levied  on  the  property  'hfyi^.^^A^'fv-' 
as  the  property  of  another,  and  the  plaintiff  owned  an  undivided  ^  m 

interest  in  it,  she  was  entitled  to  recover.     They  were  rightly  re-  ^''*'^''\V\^ 
fused.     If  she  failed  to  establish  that  she  was  the  sole  owner,  the  A^JZ^O^i'*-^ 
conduct  of  the  officer  in  attaching  the  property  as  the  property  of 
another  gave  her  no  right  of  action;  an  undivided  interest  was  not 
sufficient.  .  .  .  Exceptions  overruled.^ 

^  See  Dicey,  Parties,  p.  380  (rule  80);  Pomeroy,  Code  Remedies,  4th  ed., 
p.  201.  Compare  Soule  v.  Mogg,  35  Hun  (N.  Y.),  79;  Clapp  v.  Pawtucket  Inst, 
for  Sav.,  15  R.  I.  489,  8  Atl.  697,  2  Am.  St.  Rep.  915.  —  Ed. 

2  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 

'  Co-owners  of  goods,  whether  joint  tenants  or  tenants  in  common,  must 
join  in  an  action  of  replevin.  Cox  v.  Morrow,  14  Ark.  603 ;  Pritchard  v.  Culver, 
2  Harr.  (Del.),  129;  McArthur  v.  Lane,  15  Me.  245;  Hart  v.  Fitzgerald,  2 
Mass.  509;  Reinheimer  v.  Hemingway,  35  Pa.  432.  See  1  Chitty,  Pleading, 
16th  Am.  ed.,  p.  *74. 

As  to  joinder  of  plaintiffs  in  an  action  of  detinue,  see  Bolton  v.  Cuthbert, 
132  .\la.  403,  31  So.  3.58;  Smoot  v.  Wathen,  8  Mo.  .522. 

Dicey  summarizes  the  rules  as  to  joinder  of  plaintiffs  in  tort  actions  as  fol- 
lows: "1.  Persons  who  have  a  separate  interest  and  sustain  a  separate  damage 
must  sue  separately.  2.  Persons  who  have  a  separate  interest,  but  sustain  a 
joint  damage,  may  sue  either  jointly  or  separately  in  respect  thereof.  3. 
Persons  who  have  a  joint  interest  must  sue  jointly  for  an  injury  to  it."  Dicey, 
Parties,  p.  380  (rule  80).  —  Ed. 


^/ 


'Lu^, 


136  PARTIES 


i^jy 


^     HART  V.   ROBERTSON. 

Supreme  Court  of  California.     1863. 

[Reported  21  California,  346.] 

Field,  C.  J.^  XiiiSJ^^an  action  to  recover  the  possession  of  cer- 
tain real  property  situated  within  the  city  of  San  Francisco.  The 
plaintiff  is  the  widow  of  William  Hart,  late  of  said  city,  and  claims 
the  premises  under  two  deeds  executed  to  her  during  her  coverture. 
If  those  deeds  conveyed  the  premises  by  way  of  gift,  she  took  them 
as  her  separate  property,  and  is  entitled  to  maintain  the  present 
action  without  reference  to  any  administration  upon  her  husband's 
estate.  If,  on  the  other  hand,  the  instruments  were  deeds  of  bar- 
gain and  sale,  as  contended  by  the  appellant,  the  property  belonged 
to  the  community  existing  between  herself  and  husband,  and  upon 
his  death  she  succeeded,  as  his  survivor,  to  one  undivided  half 
interest  therein,  the  remaining  interest  descending  to  his  heirs.  As 
tenant  in  common  with  the  heirs,  she  could  maintain  the  present 
action  for  the  possession  of  the  entire  premises  against  the  defend- 
ant, who  is  a  mere  intruder  thereon.  One  tenant  in  common  is 
entitled  to  the  possession  of  the  entire  tract  held  in  common,  against 
all  persons  but  his  cdtenants  and  parties  claiming  under  them,  and, 
as  a  consequence,  can  maintain  against  them  an  action  for  its  re- 
covery. Stark  y.  Barrett,  15  Cal.  371;  Touchard  v.  Crow,  20  Id. 
162.  It  does  not  appear  that  any  administrator  was  ever  ap- 
pointed upon  the  estate  of  William  Hart,  deceased,  or  that  there 
were  any  debts  against  him  which  required  the  appointment  of  one 
for  their  settlement.  The  right  to  the  possession,  therefore,  accom- 
panied the  title,  which  vested  in  the  widow  and  heirs.  In  Meeks 
V.  Hahn,  20  Cal.  620,  an  administrator  had  been  appointed,  and  in 
such  case  we  held  that  the  right  to  the  possession  of  the  real  prop- 
erty, of  which  the  intestate  died  seized,  remained  exclusively  with 
the  administrator  until  the  estate  had  been  settled,  or  the  property 
had  been  distributed  to  the  heirs  by  the  decree  of  the  Probate 
Court.  Judgment  affirmed.^ 

*  The  statement  of  facts  is  omitted.  —  Ed. 

2  Clark  V.  Vaughan,  3  Conn.  191;  McNear  i>.  Williamson,  166  Mo.  358,  66 
S.  W.  160;  Brown  v.  Warren,  16  Nev.  228;  Clapp  v.  Pawtucket  Inst,  for  Sav., 
15  R.  I.  489,  8  Atl.  697,  2  Am.  St.  Rep.  915  {semble),  accord.  But  see  Dicey, 
Parties,  p.  492  (rule  111). 

As  to  the  extent  of  the  plaintiff's  recovery,  see  Moulton  v.  McDermott, 


^^'-k^ 


HARRIS   V.    SWANSON    &    BRO.  137 


J         HARRIS   V.   SWANSON   &   BRO. 
Supreme  Court  of  Alabama.     1878. 
[Reported  62  Alabama,  299.] 


dft^/yi 


The  appellant,  M.  H.  Harris,  commenced  this  action  against  the 
appellees,  M.  B.  Swanson  &  Brother,  to  recover  the  statutory 
penalty  for  their  failure  to  enter  satisfaction  on  the  record  of  a 
mortgage,  for  more  than  three  months  after  payment  and  request 
to  enter  satisfaction.  It  was  alleged  that  the  mortgage  was  exe- 
cuted by  the  plaintiff  and  one  Wright,  who  were  then  engaged  in 
a  planting  partnership,  but  that  all  the  property  covered  by  it, 
except  the  crop  raised  that  current  year,  was  the  personal  property 
of  the  plaintiff.  A  demurrer  for  a  non-joinder  of  Wright  as  party 
plaintiff  having  been  interposed  and  sustained  by  the  Circuit 
Court,  the  plaintiff  offered  to  amend  by  making  Wright  a  co- 
plaintiff,  and  tendered  to  said  Wright  indemnity  for  all  costs  and 
expenses  of  suit.  It  was  shown  that  the  security  tendered  was 
ample.  The  court  then  asked  said  Wright  if  he  was  willing  to  be 
made  a  party  on  the  indemnity  offered  him  by  the  plaintiff.  Wright 
objected  to  being  made  a  party  plaintiff.  The  plaintiff  then 
offered  to  show  to  the  court  by  said  Wright  that  he  did  not  object 

80  Cal.  629,  22  Pac.  296;  Winborne  v.  Elizabeth  City  Lumber  Co.,  130  N.  C. 
32,  40  S.  E.  825;   Mobley  v.  Bruner,  59  Pa.  481. 

It  has  been  held  that  tenants  in  common  of  land  must  not  join  in  ejectment. 
Heatherley  v.  Weston,  2  Wils.  232;  Stevenson  v.  Cofferin,  20  N.  H.  150  (writ 
of  entry).  See  Chitty,  Pleading,  16th  Am.  ed.,  p.  *74.  But  see  Bush  v. 
Bradley,  4  Day  (Conn.),  298;  Jackson  v.  Bradt,  2  Caines  (N.  Y.),  169.  By 
statute  in  some  states  tenants  in  common  may  join  in  ejectment.  See  Hicks 
V.  Rogers,  4  Cranch  (U.  S.),  165;  West  Chicago  Park  Commissioners  v.  Cole- 
man, 108  111.  591;  Tilden  v.  Tilden,  13  Gray  (Mass.),  108. 

In  an  action  for  damages  tenants  in  common  of  land  may  join.  Chamier 
V.  Clingo,  5  Maule  &  S.  64;  Daniels  v.  Daniels,  7  Mass.  135.  And  it  is  generally 
held  that  they  must  join.  Bullock  v.  Hayward,  10  Allen  (Mass.),  460  (semble) ; 
Hill  V.  Gibbs,  5  Hill  (N.  Y.),  56;  De  Puy  v.  Strong,  37  N.  Y.  372  (under  code). 
See  Chitty,  Pleading,  16th  Am.  ed.,  p.  *75.  At  any  rate  more  than  one  and 
less  than  aU  cannot  sue  for  damages.     Kimball  v.  Sumner,  62  Me.  305. 

The  New  York  Code  of  Civil  Procedure,  sec.  1500,  provides  that  "  where 
two  or  more  persons  are  entitled  to  the  possession  of  real  property,  as  joint 
tenants  or  tenants  in  common,  one  or  more  of  them  may  maintain  such  an 
action,  to  recover  his  or  their  undivided  shares  in  the  property,  in  any  case 
where  such  an  action  might  be  maintained  by  all."  See  Deering  v.  Reilly,  167 
N.  Y.  184,  60  N.  E.  447.  There  are  similar  provisions  in  some  other  States. 
See  Pomeroy,  Code  Repiedies,  4th  ed.,  p.  198.  —  Ed. 


n>- 


138  PARTIES 

to  the  character  or  sufficiency  of  the  indemnity,  but  objected  on 
personal  grounds.  The  defendant  objected  to  this  testimony,  the 
court  sustained  the  objection  and  refused  to  allow  plaintiff  to 
make  the  proposed  amendment,  or  to  compel  said  Wright  to  allow 
himself  to  be  made  a  partj^  plaintiff,  except  upon  conditions  which 
the  plaintiff  refused  to  comply  with,  and  plaintiff  excepted.  There 
was  a  judgment  on  demurrer  for  the  defendants,  and  the  plaintiff 
brings  the  case  here  by  appeal. 

Brickell,  C.  J.  It  is  an  elementary  principle,  that  when  the 
legal  interest  in  a  cause  of  action,  whether  it  arises  out  of  contract, 
or  is  ex  delicto,  is  joint,  residing  in  several  persons,  all  who  are  living 
must  join  in  the  action  founded  on  it.  One  or  more  of  the  parties 
may  use  the  name  of  all  in  the  commencement  and  prosecution  of 
the  action.  If  others  are  unwilhng  to  join  in  the  prosecution,  the 
unwillingness  does  not  authorize  a  dismissal  of  the  suit.  They  can 
and  will,  on  a  proper  application,  be  protected  by  an  indemnity 
against  costs,  from  those  prosecuting  the  suit.  All  courts  have  an 
inherent  power  to  protect  themselves  and  their  suitors  from  an 
abuse  of  their  process,  and  to  protect  the  rights  and  interests  of 
those  who  have  beneficial  interests  in  the  subject  matter  of  suits. 
In  Cunningham  v.  Carpenter,  10  Ala.  109,  one  of  the  several  part- 
ners instituted  a  suit  at  law  in  the  name  of  the  partnership,  and 
another  partner  came  in  and  proposed  to  dismiss  the  suit  so  far  as 
he  was  concerned.  The  dismissal,  if  allowed,  would  have  been 
fatal  to  the  suit.  This  court  said,  there  would  be  no  substantial 
difference  between  allowing  a  partner  to  extinguish  a  partnership 
debt  with  his  individual  debt  and  allowing  him  to  interfere  with  a 
suit  his  partner  had  commenced,  especially  when  the  offer  was 
made  to  secure  him  against  costs. 

The  statute  authorized  the  amendment  of  the  complaint,  by  the 
insertion  of  the  name  of  Wright  as  a  plaintiff.  When  the  complaint 
was  amended,  Wright,  if  unwilling  to  join  in  the  prosecution  of  the 
suit,  could  have  demanded  from  Harris  indemnity  against  the 
costs,  and  a  reasonable  time  should  have  been  allowed  to  furnish 
it.  It  was  tendered  immediately,  however,  and  with  its  character 
and  sufficiency  Wright  was  satisfied.  Being  satisfied,  his  personal 
unwillingness  to  prosecute  the  suit  is  immaterial,  he  is  not  bound 
if  it  results  in  a  judgment  favorable  to  Harris  and  himself,  to  par- 
ticipate in  its  fruits;  but  he  is  without  power  to  arrest  or  impede 
the  prosecution  of  the  suit.  The  indemnity  being  satisfactory  to 
Wright,  it  was  not  the  province  of  the  court  to  require  that  any 
other  should  be  given  in  lieu  of  it.     It  is  for  his  personal  protection 


SEDGWOKTH    V.    OVEREND  139 

the  indemnity  is  required,  and  when  such  is  tendered  as  he  is  satis- 
fied with,  the  court  is  without  further  power  in  the  premises. 

Reversed  and  remanded} 


l^     SEDGWORTH   v.   OVEREND   and  Three  Others.       I'S'^^-'*^ 
King's  Bench.     1797. 
[Reported  7  Tcrvi  Reports,  279.] 

This  was  an  action  on  the  case  brought  by  the  plaintiff,  who  was 
described  as  the  owner  of  three  fourth  parts  of  a  ship  The  Sally, 
against  the  defendants,  the  owners  of  another  ship,  for  so  negh- 
gently,  carelessly,  and  unskilfully  navigating  their  ship  that  she  run 
foul  of  the  plaintiff's  and  sunk  her. 

The  defendants  pleaded  in  abatement  that  the  plaintiff  at  the 
time  of  the  injury  and  loss  had  no  interest  or  property  in  the  ship 
Sally  unless  jointly  and  undividedly  with  one  J.  Addison,  who  is 
still  alive,  &c.,  wherefore  inasmuch  as  J.  Addison  is  not  named  in 
the  bill  the  defendants  prayed  that  it  might  be  quashed. 

The  plaintiff  replied  that  at  the  time  of  the  injury  and  loss  J. 
Addison  was  owner  of  one  fourth  part  of  the  ship  Sully,  and  the 
plaintiff  was  then  owner  of  the  remaining  three  fourth  parts :  that 
after  the  injury  and  loss  and  before  the  commencement  of  this 
suit,  to  wit,  in  Hilary  Term,  35  Geo.  3,  Addison  impleaded  the  de- 
fendants for  the  damage  sustained  by  him  as  owner  of  the  said  one 
fourth  part,  and  in  Trinity  Term,  36  Geo.  3,  recovered  against 
them  4:721.  damages,  &c. 

To  this  replication  the  defendants  demurred  generally. 

Lord  Kenyon,  C.  J.  I  am  clearly  of  opinion  that  the  plaintiff 
is  entitled  to  judgment.  The  case  is  shortly  this;  there  were  two 
persons  owners  of  a  ship  in  unequal  proportions,  Addison  being  the 
owner  of  a  fourth  part,  and  the  plaintiff  of  the  remaining  three 

1  See  Emery  v.  Mucklow,  10  Bing.  23;  s.  c,  3  Moo.  &  Sc.  384;  Ingham 
Lmnber  Co.  v.  Ingersoll,  93  Ark.  447,  12.5  S.  W.  139,  20  Ann.  Cas.  1002; 
Williams  v.  Pacific  Surety  Co.,  66  Or.  151,  127  Pac.  145,  131  Pac.  1021,  132 
Pac.  959,  133  Pac.  1186;  Sweigart  v.  Berk,  8  Serg.  &  R.  (Pa.),  308;  Wright  v. 
McLemore  &  Ray,  10  Yerg.  (Tenn.),  235.     See  Dicey,  Parties,  p.  108. 

Under  the  codes  it  is  provided  that  if  the  consent  of  one  who  shoukl  be 
joined  as  plaintiff  cannot  be  obtained,  he  may  be  joined  as  defendant,  the 
reason  therefor  being  stated  in  the  complaint.  See  Coster  v.  New  York  & 
ErieR.  R.  Co.,  5  Duer  (N.  Y.),  677,  3  Abb.  Pr.  332;  WiUiams  v.  Pacific  Surety 
Co.,  supra.     Compare  Peck  v.  McLean,  36  Minn.  228.  —  Ed. 


m^.  t-v'-A^ 


>' 


140  iPARTIES 

fourths;  the  former  brought  his  action  against  the  defendants,  the 
owners  of  another  vessel,  for  wrongfully  running  down  his  ship,  and 
we  decided  in  that  case  that  though  the  defendants  might  have 
pleaded  in  abatement  that  another  person  ought  to  have  been  joined 
with  the  plaintiff,  yet  as  the  defendants  omitted  to  put  in  such  a 
plea  the  plaintiff  was  entitled  to  recover ;  and  in  that  case  the  plain- 
tiff had  judgment  and  obtained  a  full  satisfaction  for  all  the  damage 
that  he  had  sustained  to  his  share  of  the  ship.  But  that  did  not 
satisfy  the  whole  justice  of  the  case,  the  present  plaintiff  being  the 
owner  of  three  fourths  of  the  ship;  he  now  brings  his  action  for  the 
injury  done  to  his  share,  to  which  the  defendants  have  pleaded  that 
at  the  time  when  the  injury  was  done,  there  was  another  owner  of 
the  ship  who  ought  to  have  sued  jointly  with  the  plaintiff;  the 
plaintiff  has  stated  in  his  replication  the  proceedings  in  the  former 
action  to  shew  that  the  plaintiff  in  that  action  has  already  received 
a  satisfaction.  And  the  question  now  is.  Whether  that  person,  :^^ 
who  has  obtained  complete  satisfaction  for  the  damage  which  he  — ' 
sustained,  ought  to  have  sued  as  a  co-plaintiff  in  this  action  ?  It 
is  said  that  he  ought  to  have  been  a  party,  because  he  is  a  trustee 
for  this  plaintiff :  but  that  is  not  correct;  they  are  tenants  in  com- 
mon of  this  ship.  Then  it  was  urged  that  the  owners  by  not  suing 
jointly  will  harass  the  defendants  by  bringing  several  actions  in- 
stead of  one :  but  to  prevent  multiplicity  of  actions  the  defendants 
had  an  opportunity  of  taking  this  objection  in  the  former  action; 
and  if  they  had  availed  themselves  of  it  at  the  proper  season  they 
would  not  have  been  harassed  with  different  actions.  I  do  not  see 
for  what  good  purpose  the  other  part-owner  ought  to  have  joined 
in  bringing  this  action ;  having  already  received  a  satisfaction  him- 
self, he  could  not  be  entitled  to  any  part  of  the  damages  to  be  re- 
covered in  this  action,  and  he  is  not  a  trustee  for  this  plaintiff. 
Therefore  on  the  grounds  of  law,  reason,  and  justice,  I  think  that 
this  plea  ought  not  to  have  been  put  in,  and  that  the  replication 
gives  a  full  answer  to  it.  Judgment  for  the  plaintiff} 

^  If  one  of  two  joint  owners  of  property  sues  alone,  and  no  objection  is 
.  taken  to  the  non-joinder  of  the  other,  and  judgment  is  given  for  the  defendant 
on  the  merits,  the  other  joint  owner  may  sue  alone.  Brizendine  v.  Frankfort 
Bridge  Co.,  2  B.  Mon.  (Ky.),  32. 

If  the  promisor  has  made  a  settlement  with  one  of  two  promisees  in  regard 
to  his  share,  the  cause  of  action  is  severed,  and  the  other  promisee  may  sue 
alone.  Boston  &  Maine  R.  R.  v.  Portland,  etc.,  R.  R.  Co.,  119  Mass.  498. 
But  see  Angus  v.  Robinson,  59  Vt.  585,  8  Atl.  497,  59  Am.  Rep.  758.  —  Ed. 


0^    /-^  n^i.<..^.^lj^  ^^^...^•-^-^  ^A4.4Jj^ 


L 


/i^         ^  '    i/ 


BURGOYNE    AND    MILLER   V.    OHIO    L.    I.    &    T.    CO.  141 


B.   Defendants. 

BURGOYNE,  Administrator,  and  MILLER    v.     OHIO     LIFE 
INSURANCE  &  TRUST  COMPANY. 

Supreme  Court  of  Ohio.     1855. 
[Reported  5  Ohio  Slate,  586.] 

Ranney,  C.  J.  The  action  in  the  court  below,  was  brought  upon 
a  joint  and  several  promissory  note  signed  by  Ludlow,  Miller,  and 
Dudley ;  the  last  of  whom  was  not  served  with  process.     The  de-  Y^  ■ 

murrer  filed  by  Ludlow's  administrator,  was  overruled,  and  a  sev- 
eral judgment,  in  due  form,  entered  against  him,  to  be  levied  of  the 
goods,  etc.,  of  the  intestate,  and  also  a  judgment  against  Miller  on 
default.  It  is  now  insisted  that  these  several  parties  could  not  be 
joined  in  the  same  action;  that  the  obligation  must  have  been 
treated  by  the  creditor  as  either  joint  or  several;  in  the  one  case 
warranting  only  a  single  judgment  against  the  survivors,  and  in 
the  other,  requiring  a  separate  action  against  each  of  the  parties  or 
their  personal  representatives.  By  a  settled  rule  of  common  law, 
the  death  of  one^o£the  joint  makers  of  An  i)bligation,  extinguished 
all  remedy  at  law  against  his  estate.  If  the  contract  was  joint,  the 
action  must  be  joint,  and  a  joint  judgment  must  follow.  But  as  the 
same  judgment  could  not  be  rendered  against  the  survivor,  and 
the  personal  representative  of  the  deceased  party,  the  consequence 
was,  that  no  action  at  law  could  be  maintained  against  the  personal 
representative,  either  jointly  with  the  survivor  or  by  a  separate 
suit.  1  Chitty's  PI.  187;  Brigden  v.  Park,  2  B.  &  C.  424;  Ashby 
V.  Ashby,  7  Id.  444;  Demott  v.  Field,  7  Cow.  58;  Corner  v.  Shew, 
3  M.  &  W.  350. 

-  In  such  cases  relief  was  afforded  in  chancer}^,  but  only  when  a 
necessity  for  such  interposition  was  shown  to  exist;  and,  therefore, 
only  upon  the  condition  that  the  remedy  at  law  against  the  sur- 
vivor, had  proved  fruitless.  3  Denio,  65;  2  J.  C.  Rep.  508;  1 
Story's  Eq.,  sec.  162;   11  Paige  Rep.  80;  10  Id.  101. 

And  inasmuch  as  no  equities  arise  against  a  surety,  and  he  is 
only  legally  bound  upon  the  strict  terms  of  the  obligation  into 
which  he  has  entered,  there  is  no  small  show  of  authority  in  the 
early  cases  for  affirming,  that  no  such  interference  can  be  invoked 
against  the  estate  of  a  party  thus  situated.  Hoar  v.  Contanien, 
2  Bro.  C.  C.  27;  Sumner  v.  Powell,  2  Mer.  30;  Ex  parte  Kendall, 


^<.^^,J^  t.v^r^'*-^^^  trr-'^X^^^^^.pr^^  ^4^-^i^iJrr 


/f!>Vt 


-^.-^-1— «— 


^XwSd'       *'^''*^/ 


142  PARTIES 

17  Ves.  519;  Weaver  v.  Shryork,  6  Serg.  and  R.  262;  1  Story's 
Eq.,  sec.  164, 

In  view  of  the  difficulties  which  surrounded  this  subject  at  the 
common  law,  legislation  became  imperative;  and  it  has  been  fully 
supplied.  By  the  90th  section  of  the  act  to  provide  for  the  settle- 
ment of  the  estates  of  deceased  persons  (Swan's  Rev.  Stat.  378),  it 
is  enacted,  that  "  when  two  or  more  persons  shall  be  indebted  in 
any  joint  contract,  or  upon  a  judgment  founded  upon  any  such 
contract,  and  either  of  them  shall  die,  his  estate  shall  be  liable 
therefor,  as  if  the  contract  had  been  joint  and  several,  or  as  if  the 
judgment  had  been  against  himself  alone."  This  statute  effected 
an  entire  abrogation  of  the  common  law  principle  to  which  allusion 
has  been  made;  and  left  the  estate  of  the  deceased  joint  debtor 
liable  to  every  legal  remedy,  as  fully  as  though  the  contract  had 
been  joint  and  several.  Until  the  passage  of  the  act  to  establish  a 
code  of  civil  procedure,  it  is  very  true,  his  personal  representative 
and  the  survivor  could  not  be  sued  in  the  same  action.  But  by  the 
38th  section  of  that  act,  it  is  provided,  that  "persons  severally  liable 
upon  the  same  obligation  or  instrument,  including  the  parties  to 
bills  of  exchange  and  promissory  notes,  may,  all  or  any  of  them, 
be  included  in  the  same  action,  at  the  option  of  the  plaintiff."  And 
the  371st  section  allows  a  several  judgment  to  be  given  against  any 
one  of  the  defendants,  as  the  nature  of  the  case  may  require. 

In  the  opinion  of  the  court,  these  sections  permit  the  joinder  of 
the  survivor  or  survivors,  and  the  personal  representative  of  the 
deceased  obligor,  in  the  same  action,  whether  the  contract  is  in 
terms  joint  and  several,  or  made  so  by  the  90th  section  of  the  ad- 
ministration law  upon  the  death  of  a  joint  obligor;  and  authorizes 
a  several  judgment  to  be  rendered  against  each,  according  to  the 
nature  of  their  respective  liabilities.  We  are  aware  that  these 
provisions  of  our  code,  are  almost  literally  copied  from  correspond- 
ing provisions  in  the  code  of  New  York ;  and  that  a  different  con- 
struction was  placed  upon  them  by  a  single  judge  of  the  supreme 
court  of  that  State,  in  the  case  of  Morehouse  v.  Ballou,  16  Barb. 
Rep.  289.  With  all  proper  respect  for  the  opinions  of  each  of  the 
thirty-two  judges  of  which  that  court  is  composed,  we  think  it  much 
safer  to  rely  ui:>on  the  obvious  import  of  the  language  of  our  code, 
liberally  interpreted  with  a  view  to  the  ol)jects  intended  to  be  at- 
tained, than  upon  the  multitude^  of  conflicting  decisions  to  be  found 
in  the  reports  of  the  supreme  court  of  N(^w  York.  But  if  we  were 
bound  to  follow  a  New  York  decision,  we  need  not  go  beyond  the 
volume  to  which  we  have  been  referred,  to  find  authority  for  our 


MCCALL    V.    PRICE  143 

position,  and  a  direct  contradiction  to  the  case  above  cited.  In  the 
case  of  Parker  v.  Jackson,  IG  Barb.  33,  decided  at  a  general  term  of 
the  supreme  court,  by  four  judges,  it  was  held  that  all  the  parties 
severally  liable  upon  the  same  instrument  might  be  prosecuted  in 
the  same  action,  and  several  judgments  be  entered;  that  such  a 
proceeding  was  to  all  intents,  under  the  code,  a  several  action, 
giving  the  full  right  to  separate  defenses;  and  that  such  an  action 
might  be  maintained  against  the  surviving  debtor,  and  the  repre- 
sentatives of  a  deceased  co-debtor,  ^\dthout  alleging  the  insolvency 
of  the  survivor.  On  the  whole,  we  can  find  no  error  in  the  pro- 
ceedings of  the  court  below,  and  its  judgment  should  be  affirmed.^ 


McCALL  V.   PRICE. 
Constitutional  Court  of  South  Carolina.     1821. 

[Reported  1  McCord,  Law,  82.] 


V 


This  was  an  action  of  debt,  on  a  joint  bond  of  one  Thomas 
Nichols,  and  defendant.  An  appearance  was  entered  for  defend- 
ant; but  as  to  Thomas  Nichols,  the  sheriff  returned  that  he  was 
absent  from  the  State,  and  could  not  be  found.  The  plaintiff  de- 
clared against  the  defendant,  stating,  in  his  declaration,  that  the 
said  co-defendant  or  obligor,  Thomas  Nichols,  was  absent  and 
could  not  be  served  \^^th  process.  To  this,  defendant  pleaded  in 
abatement,  that  Nichols  was  joined  as  an  obligor  ^\ath  her,  and 
that  he  was  alive,  &c. 

In  reply,  the  plaintiff  alleged  that  said  Nicholas  was  absent  from 
the  State,  and  could  not  be  served  with  process. 

To  this  replication,  defendant  demurred. 

'  At  common  law  parties  severally  liable  in  contract  could  not  be  joined  as 
defendants.  But  the  code  provision  that  one  or  more  of  the  persons  severally 
liable  on  a  wTitten  instrument  may  be  included  in  the  same  action  at  the  option 
of  the  plaintiff  has  been  widely  adopted.  See  Pomeroy,  Code  Remedies,  4th 
ed.,  pp.  299,  393-404. 

On  the  question  of  the  right  under  statutory  provisions  to  join  survivors  of 
joint  debtors  with  representatives  of  a  deceased  debtor,  see  Braxton  v.  State, 
25  Ind.  82;  Lee  v.  Blodget,  214  Ma.ss.  374,  102  N.  E.  67;  Voorhis  v.  Child's 
Executor,  17  N.  Y.  354.  Compare  Potts  v.  Bounce,  173  N.  Y.  335,  66  N.  E.  4. 
And  see  Pomeroy,  Code  Remedies,  4th  ed.,  p.  292. 

.\s  to  the  right  to  join  an  agent  and  an  undisclosed  principal  in  an  action  on  a 
contract,  see  Gay  v.  Kelley,  109  Minn.  101,  123  N.  W.  295,  26  L.  R.  A.  (n.  s.), 
742;  Tew  v.  Wolf.sohn,  77  N.  Y.  App.  Div.  454,  79  N.  Y.  Supp.  286,  affirmed 
174  N.  Y.  272,  66  N.  E.  934.  —  Ed. 


144  PARTIES 

This  demurrer  and  plea  in  abatement,  was  overruled  by  his 
honor,  after  argument,  on  the  grounds,  that  as  the  process  of  out- 
lawry was  not  known  to  our  laws,  and  there  ought  to  be  a  remedy, 
he  thought  that  the  lodging  of  a  writ  against  Nichols,  the  co- 
obligor,  being  the  first  step  towards  making  him  appear,  was,  on 
the  return  of  the  sheriff  that  he  was  absent  from  the  state,  sufficient 
to  enable  the  plaintiff  to  declare  against  the  obligor  who  was  served. 

From  this  decision,  the  plaintiff  appealed  to  the  Constitutional 
Court  upon  the  following  grounds : 

1st.  Because,  when  the  parties  are  jointly  and  not  severally 
bound,  as  they  are  here,  the  obligee  must  sue  them  jointly. 

2d.  Because,  if  the  process  of  outlawry  be  known  to  our  laws, 
it  should  have  been  sued  out  against  the  co-obligor,  Thomas 
Nichols,  before  the  defendant,  Mrs.  Price,  could  be  legally  charged 
with  the  whole  debt. 

3d.  Because,  if  such  outlawry  process  be  unknown  to  our  laws, 
there  is  no  remedy  at  law  for  the  plaintiff,  and  the  Judges  cannot 
make  one. 

CoLCOCK,  J.  The  common  law  doctrine,  that  where  there  are 
two  joint  obligors,  both  must  be  sued,  is  too  familiar  to  admit  of 
doubt;  also,  that  it  has  been  decided  in  England,  that  where  one 
of  two  joint  obligors  is  out  of  the  kingdom,  the  plaintiff  must  pro- 
ceed to  outlawry  against  him.  Sheppard  v.  Baillie,  6  Term  Rep. 
327.  But  I  am  of  opinion  that  the  process  of  outlawry  is  obsolete, 
and  contrary  to  the  spirit  and  principles  of  our  government.  It 
would  be  inconvenient  in  practice,  if  not  utterly  impracticable, 
without  some  legislative  provision;  and  therefore  there  is  no 
remedy,  unless  the  plaintiff  be  allowed  to  proceed  in  the  manner  in 
which  he  has  proceeded.  I  take  it  that  it  is  incumbent  on  us  to 
pursue  the  common  law,  only  so  far  as  the  same  is  consistent  with 
the  principles  and  spirit  of  our  government,  and  that  in  this  in- 
stance I  have  done  so.  By  the  common  law  of  England,  it  is  es- 
tablished, that  where  there  are  two  joint  obligors,  both  must  be 
sued.  By  the  same  law,  a  remedy  is  given,  where  one  is  without 
the  kingdom.  Shall  it  be  said  we  are  to  adopt  the  first  provision 
of  the  law,  when  the  other  cannot  be  applied  ?  I  am  ready  to  say 
we  are  not  bound  to  do  so.  Again,  if  the  process  of  outlawry  in 
su(;h  a  case  as  the  present  were  resorted  to  in  England,  what  would 
result  ?  That  it  would  appear  that  one  of  the  joint  obligors  was 
absent  from  the  kingdom,  and  without  the  control  of  the  law.  The 
plaintiff  could  then  compel  the  other  defendant  to  pay  the  debt. 


MCCALL   V.    PRICE  145 

Now  does  not  the  same  thing  appear  to  us  ?  The  one  who  was 
compelled  to  pay  the  debt,  would  not  be  benefited;  for  if  there  are 
no  goods  to  be  forfeited,  nothing  could  be  obtained  for  him  by  the 
outlawry. 

But  it  is  said  we  cannot  know,  nor  can  the  fact  be  put  on  the 
record,  that  the  absent  debtor  has  no  goods.  The  answer  is  plain, .. .  _ 
if  he  have  any,  let  the  co-obligor  find  them;  for  it  may  be  reason- 
ably  supposed  that  he  is  best  acquainted  with  the  circumstances  of 
the  absent  person.  If  a  remedy  did  not  exist  in  England  by  process 
of  outla^v^y  against  the  absent  joint  obligor,  I  have  no  doubt  that 
it  would  be  held,  that  a  voluntary  abjuration  of  the  realm  was  a 
destruction  of  that  unity  of  responsibihty  which  renders  it  neces- 
sary that  both  should  be  sued;  and  this  I  think  is  supported  by  the 
analogies  of  the  law.  "  A  husband  who  hath  abjured  the  realm, 
or  is  banished,  is  thereby  dviliter  mortuus;  and  being  disabled  to 
sue,  or  be  sued,  in  right  of  his  wife,  she  must  be  considered  as  a 
feme  sole."  And  what  is  the  reason  assigned  ?  For  it  would  be 
unreasonable  that  she  should  be  remediless  on  her  part,  and  equally 
hard  upon  those  who  had  any  demand  on  her,  that  not  being  able 
to  have  any  redress  from  the  husband,  they  should  not  have  any 
against  her.  1  Bacon,  Title  Baron  &  Feme,  letter  M.  Now,  I 
cannot  conceive  that  the  unity  of  interest  and  person,  between  two 
joint  obligors,  can  be  greater  than  that  which  the  law  recognizes 
between  husband  and  wife;  and  if  the  voluntary  absence  of  one 
of  the  parties  in  the  one  case  is  considered  as  a  dissolution  of  the 
legal  unity,  I  cannot  conceive  why  it  should  not  be  so  in  the  other. 
But  a  majority  of  my  brethren  are  of  opinion  that  the  plaintiff  can- 
not recover;  that  both  the  co-obligors,  in  a  joint  contract,  must  be 
sued,  and  that  however  hard,  there  is  no  remedy  which  this  Court 
can  apply. 

The  motion  is  granted. 

Justices  Nott,  Johnson,  and  Huger,  concurred  in  granting  the 
motion. 
Justice  Gantt,  I  concur  in  the  opinion  expressed  by  my  brother 

COLCOCK.  /     •  Vi^iiTP 


/uyfy^^^^H^-^  ^*yr^'^^  ^*«^  o«-^  ls/<-^  <rf-e-^_ 


i7 


^ 


V' 


146  PARTIES 

BLESSING   V.   McLINDEN. 
Court  of  Errors  and  Appeals  of  New  Jersey.     1911. 
\  [Reported  81  New  Jersey  Law,  379.] 

Pitney,  Chancellor.  The  record  shows  that  Blessing,  now 
defendant  in  error,  commenced  suit  in  the  Cape  May  Circuit  Court 
against  William  H.  Quigg  and  James  McLinden  (the  latter  now 
plaintiff  in  error),  to  recover  the  amount  due  upon  a  judgment 
theretofore  rendered  against  them  as  co-partners  in  a  court  of 
record  of  the  State  of  Pennsylvania.  Summons  against  both  de- 
fendants was  issued  to  the  sheriff  of  the  county  of  Cape  May,  and 
to  it  the  declaration  was  annexed  as  permitted  by  the  Practice  act. 
Pamph.  L.  1903,  p.  564,  §  95.  The  sheriff  returned  that  the 
summons  and  declaration  were  served  personally  upon  McLinden, 
and  that  Quigg  could  not  be  found  in  his  county,  and  according  to 
the  information  and  belief  of  the  sheriff  was  a  resident  of  the  State 
of  Pennsylvania. 

The  defendant,  McLinden,  appeared,  and  filed  certain  pleas, 
which,  on  motion  of  the  plaintiff,  were  struck  out  upon  the  ground 
that  they  were  sham  and  frivolous  and  did  not  set  up  any  defence 
to  the  action. 

Judgment  by  default  was  thereupon  entered  in  behalf  of  the 
plaintiff,  and  against  McLinden  alone  as  defendant,  for  the  amount 
claimed  to  be  due  upon  the  Pennsylvania  judgment,  with  costs. 

The  grounds  relied  upon  for  reversal  are  — -  first,  that  the  Circuit 
Court  erred  in  striking  out  the  pleas ;  ^  and  secondly,  that  the  court 
erred  in  rendering  judgment  against  the  defendant,  McLinden, 
alone,  whereas  it  is  insisted  that  under  the  "  Act  concerning  obli- 
gations," approved  March  27th,  1874  (Gen.  Stat.,  p.  2336,  §  2),  the 
judgment,  if  any  judgment  was  lawful,  should  have  been  against 
both  Quigg  and  McLinden  as  co-partners.  .  .  . 

The  pleas  being  thus  eliminated,  and  the  plaintiff  having  there- 
upon proceeded  to  take  judgment  by  default  as  for  want  of  a  plea, 
it  remains  to  be  considered  whether  his  judgment  against  McLin- 
den alone  is  erroneous.  As  to  this,  the  argument  is  that  under 
section  2  of  our  act  concerning  obligations  ^  (Gen.  Stat.,  p.  2336), 

1  A  part  of  the  opinion  in  which  it  was  held  that  the  action  of  the  court  in 
striking  out  the  pleas  was  not  reviewable,  and  certain  otlier  parts  of  the 
opinion,  are  omitted.  —  Ed. 

2  Section  2  of  the  Act  provides  "  That  all  persons  jointly  indebted  to  any 
other  person  or  persons,  upon  any  joint  contract,  obligation,  matter,  or  thing. 


BLESSING    V.    McLINDEN  147 

while  one  of  two  defendants  jointly  indebted  to  the  plaintiff  may 
be  required  to  answer,  he  nevertheless  remains  only  jointly  liable; 
that  the  judgment  provided  for  by  the  act  must  be  a  joint  judg- 
ment, and  may  not  be  a  judgment  against  the  answering  defendant 
alone;  that  the  act  may  not  be  reasonably  construed  to  change  a 
joint  liability  to  a  several  liability;  that  by  virtue  of  the  adoption 
of  the  fourteenth  amendment  of  the  federal  constitution,  as  con- 
strued by  the  Supreme  Court  of  the  United  States  in  Pennoyer  v. 
Neff,  95  U.  S.  714,  our  statute  is  either  rendered  totally  ineffective, 
or  must  be  limited  in  its  effect  as  against  the  joint  debtor  not  served 
so  as  to  be  enforceable  only  against  the  joint  property;  but  that  in 
any  event  the  act  requires  that  the  judgment  shall  go  against  all 
the  joint  obligors  or  against  none.  .  .  . 

The  purpose  and  effect  of  the  act  will  be  better  understood  after 
a  ]:)rief  reference  to  the  law  as  it  theretofore  stood. 

The  old  English  practice  respecting  actions  against  joint  debtors, 
some  only  of  whom  could  be  served  with  process,  was  to  proceed 
to  outlawTj^  against  the  absent  or  absconding  defendant,  and  hav- 
ing done  this  to  prosecute  the  action  against  the  defendant  who 
was  served,  declaring  against  him  alone  upon  a  joint  contract  made 
by  him  and  the  absentee.  1  Tidd  Pr.  (3d  Am.  from  9th  London 
ed.)  *130,  131;  1  Chit.  PI.  (13th  Am.  from  6th  London  ed.)  *42; 
2  Id.  *8. 

But  this  practice  did  not  rest  upon  the  ground  that  the  joint 
contractor,  who  was  ^\'ithin  the  jurisdiction,  had  any  right  to  have 
his  fellow  joined  as  defendant  if  the  latter  were  Avithout  the  juris- 
diction. The  law  did  not  deny  a  recovery  against  one  joint  con- 
tractor because  his  co-contractor  could  not  be  served  with  process. 
The  non-joinder  of  one  of  several  joint  contractors  could  be  availed 
of  only  by  plea  in  abatement,  and  such  plea  must  inform  the  plain- 
tiff of  the  names  of  the  parties  not  joined,  and  must  state  that  they 
were  still  living  unless  this  appeared  on  the  face  of  the  declaration. 

for  which  a  remedy  might  be  had  at  law  against  such  debtors,  in  case  all  were 
taken  by  process  issued  out  of  any  com-t  of  this  state,  shall  be  answerable  to 
their  creditors  separately  for  such  debts;  that  is  to  say,  such  creditor  or 
creditors  may  issue  process  against  such  joint  debtors,  and  in  case  any  of  such 
joint  debtors  shall  be  taken  and  brought  into  court,  by  virtue  of  such  process, 
such  of  them  so  taken  and  brought  into  court  shall  answer  to  the  plaintiff  or 
plaintiffs;  and  if  judgment  shall  pass  for  the  plaintiff  or  plaintiffs,  he,  she  or 
they  shall  have  his,  her,  or  their  judgment  and  execution  against  such  of  them 
so  brought  into  court,  and  against  the  other  joint  debtor  or  debtors  named  in 
the  process,  in  the  same  manner  as  if  they  had  all  been  taken  and  brought  into 
court  by  virtue  of  the  said  process."  —  Ed. 


148  PARTIES 

Rice  V,  Shute,  Burr.  2611 ;  1  Smith  Lead.  Cas.  (H.  &  W.  ed.),  *645 
^nd  notes;  1  Chit.  PI.  *43,  46;  2  Id.  *901;  Mershon  v.  Hobensack, 
2  Zab.  372,  379;  3  Id.  580;  Lieberman  v.  Brothers,  26  Vroom,  379; 
Die.  Part.  11,  12. 

Under  the  ancient  practice,  a  plaintiff  who  commenced  his  action 
against  one  only  of  two  joint  obligors,  where  the  other  resided 
beyond  seas,  subjected  himself  to  the  risk  that  the  action  might 
be  abated  and  he  be  put  to  the  cost  and  delay  of  a  new  action  with 
proceedings  for  outlawry.  It  was  principally  in  order  to  avoid 
this  risk,  and  not  because  of  any  apprehension  that  the  right  of 
action  against  the  resident  debtor  would  otherwise  be  in  jeopardy, 
that  a  prudent  plaintiff  instituted  his  suit  against  both  joint  deb- 
tors and  took  proceedings  for  outlawry,  in  the  first  instance,  if  one 
of  the  joint  debtors  was  absent  or  absconding.  In  some  cases,  no 
doubt,  it  was  deemed  important  to  join  the  absentee  in  order  either 
to  enforce  a  forfeiture  of  his  property  or  to  avoid  waiving  the  right 
to  proceed  against  him  in  a  subsequent  action.  See  1  Chit.  PI. 
*46;  per  Coltman,  J.,  in  Joll  v.  Lord  Curzon,  4  Man.  Gr.  &  S. 
(C.  B.)  255. 

The  English  practice  was  amended  by  statute  3  and  4  William 
IV.,  chapter  42,  section  8,  which  required  that  a  plea  in  abatement 
for  non-joinder  of  a  defendant  should  be  accompanied  by  an  affida- 
vit stating  the  residence  in  England  of  the  omitted  defendant  (1 
Chit.  PI.  *46),  the  practical  effect  of  which  was  to  prevent  the  resi- 
dent debtor  from  objecting  to  the  non-joinder  of  his  co-obligor 
unless  the  latter  resided  within  the  jurisdiction.  Die,  Part,  rule 
49,  230,  232.  And  see  our  Practice  act,  section  38,  Pamph.  L.  1903, 
p.  545. 

In  our  colonial  times,  proceedings  to  outlawry  not  being  in  use 
here,  the  doubt  arose  that  is  referred  to  in  the  preamble  of  our  act 
of  1771,  which  was  solved  for  this  colony  by  requiring  the  resident 
debtor  to  answer,  and  permitting  judgment  to  be  taken  against 
him  and  the  non-resident  together.  (Pennsylvania  adopted  the 
simpler  solution  of  holding  that  as  there  was  no  process  of  outlawry 
in  civil  actions,  the  return  of  7ion  est  inventus  had  the  same  effect. 
Dillman  v.  Schultz,  5  S.  &  R.  35.)  The  effect  of  our  act  was  to  pre- 
vent the  abatement  of  the  action  for  failure  to  proceed  to  outlawry 
against  the  non-resident  joint  debtor,  and  to  provide  that  the  plain- 
tiff might  take  judgment  against  him  as  well  as  against  the  debtor 
who  was  served  with  process.  .  .  . 

Even  prior  to  the  adoption  of  the  fourteenth  amendment,  how- 
ever, it  was  well  settled  that  if  one  of  the  debtors  was  not  within 


BLESSING   V.    McLINDEN  140 

the  state,  not  served  with  process,  and  did  not  voluntarily  appear, 
the  judgment  could  not  be  enforced  against  him  in  any  other  juris- 
diction, even  though  l)y  the  lex  loci  a  service  on  the  co-obhgor  resi- 
dent within  the  jurisdiction  were  sufficient  to  authorize  a  judgment 
against  all.  D'Arcy  v.  Ketcham,  11  How.  165;  Thompson  y.  Whit- 
man, 18  Wall.  457;  Knowles  v.  Gas  Light  and  Coke  Co.,  19  Id.  58; 
Hall  V.  Lanning,  91  U.  S.  160;  Hanley  v.  Donoghue,  116  Id.  1; 
Renaud  v.  Abbott,  116  Id.  277;  Phelps  v.  Brewer,  9  Cush.  (Mass.) 
390.  .  .  . 

Until  the  adoption  of  the  fourteenth  amendment,  however,  it 
was  commonly  held  that  a  state  might  authorize  a  personal  judg- 
ment, good  within  its  own  territory,  against  one  who  had  not  been 
subjected  to  the  process  of  its  courts  by  service  of  such  process 
within  the  jurisdiction. 

But  by  that  amendment  it  was  (among  other  things)  provided 
that  no  state  should  deprive  any  person  of  life,  liberty  or  prop- 
erty without  due  process  of  law,  and  this  was  construed  by  the 
Supreme  Court  of  the  United  States  in  Pennoyer  v.  Neff,  95  U.  S. 
714,  733,  to  deprive  a  personal  judgment  of  all  vahdity,  either 
within  or  without  the  state  that  rendered  it,  if  it  were  rendered  by 
a  state  court  in  an  action  upon  a  money  demand  against  a  non- 
resident served  by  a  publication  of  notice  or  summons,  but  upon 
whom  no  personal  service  of  process  within  the  state  had  been 
made,  and  who  had  not  appeared  to  the  action. 

See  Elsasser  v.  Haines,  23  Vroom,  10,  15;  Smith  v.  Colloty,  40  Id. 
365,  371. 

We  deem  it  clear  that  one  effect  of  the  amendment,  as  thus  con- 
strued, was  to  render  it  unlawful  in  an  action  against  joint  debtors, 
under  our  statute,  to  give  judgment  against  any  debtor  not  brought 
into  court  by  virtue  of  its  process,  at  least  in  case  such  debtor  be 
not  a  citizen  or  resident  of  this  state.  And  so  our  Supreme  Court 
intimated  in  United  States  v.  Griefen,  44  Vroom,  195,  197. 

The  act,  in  its  latest  revised  form,  was  enacted  in  1874,  subse- 
quent to  the  adoption  of  the  fourteenth  amendment,  which  oc- 
curred in  1868.  But,  upon  familiar  principles,  the  act  speaks  as  of 
the  time  of  its  original  enactment  (Smith  v.  Colloty,  40  Vroom,  370, 
and  cases  cited),  and  therefore  may  be  treated  as  having  been  fol- 
lowed by  that  amendment,  and  nullified  yro  tanto  by  it,  rather  than 
as  having  been  subsequently  enacted  in  the  teeth  of  the  constitu- 
tional prohibition. 

Nor  is  the  statute,  as  thus  amended,  any  the  less  a  practical 
working  enactment.     Its  primary  purpose,  as  evidenced  not  only 


150  PARTIES 

by  its  provisions  but  by  the  original  preamble  in  Allinson,  was  to 
subject  the  resident  joint  debtor  to  responsibility.  This  object 
was  sought  to  be  carried  out  by  authorizing  the  plaintiff  to  take 
judgment  and  execution  "  against  such  of  them  so  brought  into 
court  and  against  the  other  joint  debtor  or  debtors  named  in  the 
process."  Eliminating  the  "  other  joint  debtor  or  debtors  "  on 
the  ground  that  they  have  not  been  served  with  process,  still  leaves 
the  statute  as  permitting  a  judgment  against  such  joint  debtors  as 
have  been  brought  into  court. 

The  result  is  that  where  one  of  two  joint  debtors  resides  within 
this  jurisdiction  and  the  other  is  a  non-resident,  and  is  not  found  to 
be  served  with  process  in  this  §tate,  the  plaintiff  may  have  his 
judgment  against  the  resident  debtor,  omitting  the  other.  This 
was  the  practical  outcome,  in  ordinary  cases,  under  the  common 
law  practice  of  outlawry.  .  .  . 

" — We  find  it  unnecessary  to  consider  whether  the  principle  of  the 
decision  in  Pennoyer  v.  Neff  would  invalidate  a  judgment  rendered 
in  conformity  to  our  Joint  Debtors'  act  against  one  of  the  several 
joint  debtors  (the  others  only  being  served  with  process),  he  being 
a  citizen  and  resident  of  this  state.  See  Moulin  v.  Insurance  Com- 
pany, 4  Zab.  249,  per  Chief  Justice  Green.  That  precise  question 
does  not  require  decision  in  order  that  the  present  case  may  be  dis- 
posed of.  For  we  may  properly  make,  and  ought  to  make,  every 
reasonable  intendment  in  favor  of  the  validity  of  the  judgment 
under  review,  and  therefore  may  legitimately  assume,  if  necessary, 
that  the  defendant  Quigg  was  not  a  citizen  or  resident  of  this 
state,  and  could  not  in  any  manner  be  rendered  subject  to  its 
jurisdiction. 

We,  therefore,  find  no  error  in  the  entry  of  judgment  against  the 
defendant  McLinden  alone. 

Whether  the  plaintiff,  by  taking  judgment  against  one  only  of 
the  joint  debtors,  debars  himself  from  any  future  recovery  against 
the  other,  is  a  question  that  does  not  now  concern  us.  There 
seems  to  be  a  conflict  of  authority  upon  the  point.  See  Freem. 
Judg.  (4th  ed.),  §§  231,  233;  Big.  Estop.  (5th  ed.)  104. 

The  judgment  under  review  should  be  affirmed.^ 

1  See  Hall  v.  Lanning,  91  U.  S.  160,  23  L.  ed.  271;  Yerkes  v.  McFadden, 
141  N.  Y.  136,  36  N.  E.  7;  Heaton  v.  Schaeffer,  34  Okl.  631,  126  Pac.  797, 
43  L.  R.  A.  (n.  s.),  540;  and  see  50  L.  R.  A.  595. 

For  the  general  common  law  rule  as  to  joint  obligations,  see  Dicey,  Parties, 
p.  230  (rule  49).  Parties  may  be  at  once  jointly  and  severally  liable  upon  the 
same  contract,  in  which  case  they  may  be  sued  either  jointly  or  separately. 


y^\ 


HENRY  DE  BODREUGAM  V.    THOMAS  LE  ARCEDEKNE     151 


HENRY  DE  BODREUGAM  v.   THOMAS  LE 
ARCEDEKNE. 


Cornish  Iter.     1302. 

[Reported  Year  Book  30  Edward  I,  106.] 

Henry  de  Bodreugam  complained  by  bill,  that  Thomas  le 
Arcedekne  tortiously  and  against  the  peace  of  our  lord  the  King, 
came  with  force  and  arms  at  a  certain  day,  year,  and  place,  and 
assailed,  beat,  and  wounded  him,  and  his  goods,  &c.;  and  that 
tortiously  and  against  the  peace  he  took  away  William,  son  and 
heir  of  B.,  who  was  in  his  wardship,  and  to  his  damage,  &c.  — 
Middelton  denied  the  tort  and  force,  and  as  to  its  being  against  the 
peace  of  our  lord  the  King,  and  the  coming,  &c.;  and  said  that 
Thomas  did  nothing  against  the  peace.  So  a  jury  was  summoned. 
The  Inquest  said  that  Sir  Ralph  de  Bloyon,  on  the  same  day  as 
that  complained  of  by  Henry  de  Bodreugam,  came  to  the  inn  of 
Thomas  le  Arcedekne,  and  there  they  had  a  long  conversation; 
and  afterwards  Sir  Ralph  and  Thomas  and  their  followers  went  to 
the  house  of  William  Bej^on,  where  Sir  Henry  was.  Sir  Ralph 
entered,  together  with  all  the  others,  except  Thomas  who  did  not 
enter,  and  requested  Henry  that  he  would  deliver  up  to  them  an 
infant  who  was  in  ward  to  him;  but  Henry  would  not  do  so. 
Strife  arose  between  them,  and  Henry  was  beaten  and  wounded, 
as  he  complains  of  having  been.  —  Brumpton.  What  right  had 
Sir  Henry  to  the  wardship  ?  —  The  Inquest.  None,  save  the 
wardship  of  the  infant  by  virtue  of  his  mother  having  dehvered 
him  (to  Henry)  in  consequence  of  a  disagreement  between  Sir 
Ralph  and  the  mother.  —  Brumpton.  After  the  fact,  where  did 
they  go  ?  —  The  Inquest.  To  the  house  of  Thomas,  and  there 
the  infant  remained  full  three  days  afterwards.  —  Middelton. 
Sir,  bear  in  mind  that  Sir  Thomas  did  not  beat  or  wound,  as  stated 
in  the  plaint.  —  Spigonel.  If  three  thieves  come  to  a  man's 
house,  and  one  forces  and  enters  the  house,  and  the  other  two 
stand  outside  in  the  meantime,  they  shall  all  three  be  taken  and 
convicted  of  this,   whatever  judgment  you  may  think  will  be 

Dicey,  Parties,  p.  233  (rule  50).     But  more  than  one  and  less  than  all  should 
not  be  joined. 

In  some  states  the  codes  provide  that  where  two  or  more  persons  are  jointly- 
bound  by  contract,  the  action  thereon  may  be  brought  against  all  or  any  of 
them  at  the  plaintiff's  option.     See  Pomeroy,  Code  Remedies,  4th  ed.,  pp  81 
288.  —  Ed. 


152  PARTIES 

passed  on  the  two.  —  Middelton.  It  is  different  in  case  of  burglary 
or  appeal  of  death  of  a  man,  from  what  it  would  be  in  trespass.  — 
Brumpton.  Go  on  now  to  the  damages,  and  tell  us  if  they  carried 
away  any  goods  or  armour,  &c.  —  The  Inquest.  They  did  not 
carry  away  any  chattels,  but  we  assess  his  damages  at  one  hundred 
marks.  —  Middelton.  Sir,  there  are  others  who  committed  the 
trespass,  and  against  whom  the  plaintiff  can  recover;  we  entreat 
you  to  take  this  into  consideration.  —  Brumpton.  Know  that 
none  of  the  others  shall  ever  take  exception  by  reason  of  this 
judgment  for  he  has  his  action  against  each  one,  and  each  one  is 
liable  to  the  whole,  and  he  shall  recover  his  damages  against  each 
one  severally,  if  he  choose  to  sue  him;  and  forasmuch  as  he  is 
convicted  by  having  gone  armed  in  company  with  Sir  Ralph,  and 
his  followers  entered  the  house  as  before-mentioned,  thereby  it 
well  appears  that  he  M^as  an  assenting  party  to  what  took  place, 
and  we  consider  him  altogether  as  a  principal,  and  the  Court 
adjudges  that  Henry  do  recover  his  damages,  which  are  assessed 
at  a  hundred  marks,  and  that  Sir  Thomas  do  go  to  prison.^  .  .  . 

MITCHELL  V.   TARBUTT  and  Others. 


King's  Bench.     1794. 
[Reported  5  Term  Reports,  649. 


)^ 


'jk 


This  was  an  action  on  the  case  for  negligence,  wherein  the  decla- 
ration stated.  That  whereas  one  J.  Jones  and  one  G.  Bolland,  at  the 
time  of  committing  the  grievance  therein  after  mentioned,  were 
possessed  of  a  certain  ship  called  the  Albion,  which  was  then  pro- 
ceeding on  a  voyage  from  Jamaica  to  Bristol,  and  that  there  were 
then  on  board  the  said  ship  600  hds.  of  sugar  belonging  to  the  plain- 
tiff; and  that  whereas  the  said  G.  Tarbutt,  N.  A.,  J.  H.,  D.  T.  and 
J.  E.  (the  defendants),  were  at  the  time  when,  &c.  possessed  of  a 
ship  called  the  Amity  Hall,  whereof  one  G.  Young  was  then  master, 
then  also  sailing  on  the  high  seas,  and  the  said  G.  Young,  their  ser- 
vant in  that  behalf,  then  and  there  had  the  management  of  the  said 
ship  Amity  Hall;  yet,  that  the  defendants,  by  their  said  servant, 
so  negligently  navigated  their  ship  that  the  said  ship  by  the  negli- 
gence of  their  servant  with  great  force  struck  against  the  said  ship 
of  Jones  and  Bolland,  then  sailing  with  the  plaintiff's  goods  on 
board,  and  so  damaged  the  goods  that  they  were  wholly  lost  to  the 

1  A  part  of  the  case  is  omitted.  —  Ed. 


MITCHELL   V.    TARBUTT  153 

plaintiff.  To  this  the  defendants  pleaded  in  abatement,  that  the 
grievance  (if  any)  was  committed  by  the  defendants,  and  one  A. 
Shakespear,  C.  Byran,  S.  Orr,  and  J.  Neuffville  jointly,  and  not  by 
the  defendants  only.  To  which  there  was  a  general  demurrer,  and 
joinder. 

Lord  Kenyon,  Ch.  J.  With  regard  to  the  last  case  cited,  there 
certainly  is  a  distinction  in  the  books  between  cases  respecting 
real  property  and  personal  actions:  where  there  is  any  dispute 
about  the  title  to  land,  all  the  parties  must  be  brought  before  the 
Court.  But  upon  this  question  it  is  impossible  to  raise  a  doubt. 
I  have  seen  the  case  of  Boson  v.  Sandford,  in  the  different  books 
in  which  it  is  reported,  in  all  of  which  this  doctrine  is  clearly 
established,  that  if  the  cause  of  action  arise  ex  contractu,  the  plaintiff 
must  sue  all  the  contracting  parties;  but  where  it  arises  ex  delicto, 
the  plaintiff  may  sue  all  or  any  of  the  parties,  upon  each  of  whom 
individually  a  separate  trespass  attaches.  The  case  of  Boson  v. 
Sandford  was  treated  by  the  whole  Court  as  an  action  for  a  breach 
of  contract ;  there  indeed  it  was  also  determined  that  the  defendant 
might  take  advantage  of  the  objection,  that  all  the  contracting 
parties  were  not  sued,  on  the  plea  of  non  assumpsit,  but  that  being 
found  inconvenient,  a  contrary  doctrine  has  been  since  established. 
Vide  Rice  v.  Shute,  5  Burr.  2611;  Abbot  v.  Smith,  76.  2614,  5; 
and  Germaine  v.  Frederic,  Tr.  25  Geo.  3,  B.  R.  But  this  being  an 
action  ex  delicto,  the  trespass  is  several :  and  it  is  immaterial  whether 
the  tort  were  committed  by  the  defendant  or  his  servant,  because 
the  rule  applies  qui  facit  per  alium,  facit  per  se. 

Grose,  J.  The  same  distinction  between  the  actions  of  tort 
and  assumpsit  was  laid  down  in  Child  v.  Sand,  Carth.  294. 

Lawrence,  J.  In  Carth.  171,  it  was  held  that  an  action  for  a 
false  return  to  a  mandamus  was  founded  on  a  tort,  and  that  "  there- 
fore it  might  be  either  joint  or  several,  at  the  election  of  the  party, 
as  in  trespass,"  &c.  Judgment  for  the  plaintiff} 

^  If  several  persons  actively  co-operate  in  the  commission  of  a  tort  all  may 
be  joined  as  defendants.  Boston  v.  Simmons  1.50  Mass.  461,  23  N.  E.  210 
(fraud);  Ess  ;;.  Griffith,  128  Mo.  50,  30  S.  W  343  (successive  converters).  See 
Cooley,  Torts,  3d  ed.,  p.  244.  Or  any  number  less  than  all  may  be  joined. 
Brady  v.  Ball,  14  Ind  317  (joint  owners  of  trespassing  animals);  Heartz  v. 
Klinkhammer,  39  Minn.  488,  40  N.  W.  826  (joint  converters);  Roberts  v. 
Johnson,  58  N.  Y.  613  (partners  whose  employee  neligently  injured  the  plaintiff). 
—  Ed. 


154  PARTIES 


Y 


^     CASEY  PURE  MILK  COMPANY  v.   BOOTH   FISH- 
ERIES  COMPANY  and  Another. 

Supreme  Court  of  Minnesota.     1913. 
[Reported  124  Minnesota,  117.] 

Hallam,  J.  Plaintiff  sues  two  defendants,  alleging  that  an  order 
for  goods  was  received  from  defendant  Produce  Company ;  that  on 
October  12,  1910,  plaintiff  took  the  goods  to  the  building  occupied 
by  both  defendants,  and,  although  the  goods  were  intended  for  the 
Produce  Company,  they  were  delivered  to  defendant  Fisheries 
Company;  that  the  next  day  plaintiff  notified  the  Fisheries  Com- 
pany to  deliver  the  goods  to  the  Produce  Company  and  the  Fish- 
eries Company  agreed  to  do  so;  that  on  the  first  of  the  following 
month  plaintiff  demanded  payment  of  the  Produce  Company,  that 
the  Produce  Company  denied  receiving  the  goods;  that  the 
Fisheries  Company,  on  inquiry,  stated  that  it  had  delivered  the 
goods  to  the  Produce  Company.  It  is  alleged  that  one  or  the  other 
of  defendants  received  the  goods  and  converted  them  to  its  own 
use,  but,  which  one,  plaintiff  is  unable  to  determine  by  reason  of  the 
counterclaims  of  defendants.  Defendants  demur  separately  on  the 
ground  that  the  complaint  states  no  cause  of  action. 

We  cannot  sustain  this  complaint.  We  do  not  wish  to  detract 
from  the  very  wholesome  rule  that  pleadings  should  be  liberally 
construed,  but  there  are  a  few  cardinal  principles  of  pleading  that 
must  be  observed.  One  of  them  is  that  a  complaint  must  state, 
with  ordinary  directness,  facts  which  constitute  a  cause  of  action 
against  each  defendant.  If  the  facts  are  not  within  the  knowledge 
of  plaintiff  or  his  attorney,  they  may  be  alleged  upon  information 
and  belief.  This  complaint  does  not  allege  facts  showing  liability 
of  either  defendant.  Both  defendants  might  answer  admitting 
every  allegation  of  the  complaint,  and  still  the  court  could  not  order 
judgment  on  the  pleadings  against  either  defendant. 

We  are  of  the  opinion  that  this  form  of  pleading  is  not  permis- 
sible under  the  code  procedure,  and  such  we  believe  to  be  the 
generally  accepted  rule.  Price  v.  Virginia-Carolina  Chemical  Co. 
136  Ga.  175,  71  S.  E.  4;  Brown  v.  Illinois  Cent.  R.  Co.  100  Ky.  525, 
38  S.  W.  862;  Oglesby's  Sureties  v.  State,  73  Tex.  658,  11  S.  W. 
873;  30  Cyc.  131.  A  different  practice  prevails  in  some  jurisdic- 
tions, but  this  is  by  virtue  of  express  provisions  of  statute.  Hon- 
duras Inter-Oceanic  Ry.  Co.  v.  Lefevre  &  Tucker,  36  L.  T.  (n.s,), 


CASEY    PURE    MILK    CO.    V.    BOOTH    FISHERIES    CO.  155 

46;  Child  v.  Stenning,  36  L.  T.  (n.s.),  426;  Bennetts  &  Co.  v. 
Mclhvraith  &  Co.  75  L.  T.  (n.s.),  145;  Phenix  Iron  Foundry  v. 
Lockwood,  21  R.  I.  556,  45  Atl.  546;  Rules  of  Practice,  58  Conn. 
561,  20  Atl.  V. 

There  is  some  authority  for  the  proposition  that  an  exception  is 
made  in  cases  where  it  is  impossible  to  determine  where  liability 
rests,  by  reason  of  some  close  relation  between  defendants,  or  of 
some  conduct  on  the  part  of  defendants,  and  that  in  such  cases  both 
parties  may  be  joined  wdth  an  alternative  allegation  that  the  acts 
constituting  lial)ility  were  committed  by  one  or  the  other.  See 
Braun  &  Ferguson  Co.  v.  Paulson,  (Tex.  Civ.  App.)  95  S.  W.  617. 
Whether  such  circumstances  give  rise  to  an  exception  to  the  rule,  we 
need  not  determine,  for  it  does  not  appear  that  this  is  an  exceptional 
case.  The  complaint  contains  no  allegation  of  any  close  relation  or 
community  of  action  between  these  parties,  except  that  they  are 

tenants  of  the  same  building.     It  does  not  allege  that  they  occupy , 

the  same  business  premises.  The  fact  is,  plaintiff  made  the  mis- 
take of  delivering  to  one  business  house  goods  intended  for  another, 
and,  instead  of  taking  the  trouble  to  make  the  transfer  itself,  relied 

upon  the  promise  of  the  party  to  whom  it  made  delivery  to  do  so. 

The  ultimate  question  in  the  case  will  doubtless  be  whether  the 
Fisheries  Company  did  transfer  the  goods  to  the  Produce  Com- 
pany, as  it  promised  to  do.  Similar  questions  are  liable  to  arise  in 
any  case  where  one  person  is  directed  to  deliver  goods  to  another, 
to  pay  money  to  another,  or  to  carry  on  almost  any  form  of  busi- 
ness negotiation  with  a  third  party.  Similar  situations  may  often 
be  presented  in  negligence  cases  where  one  person  is  injured  in  the 
region  of  operation  of  two  others. 

Plaintiff's  counsel  states  in  his  brief  that  he  suggested  to  his,.-^ 

adversaries  that  he  amend  his  complaint  so  as  to  allege  liability  of 

both  defendants.  Had  he  asked  this  of  the  court  on  the  hearing, 
his  petition  would  doubtless  have  been  granted.  Harp  v.  Bull,  3 
How.Pr.(N.Y.),44;  Lord  y. Hopkins,  30  Cal. 77;  31  Cyc.396.  But 
he  did  not  do  this.  He  saw  fit  to  stand  upon  the  complaint  as  orig- 
inally framed.  However,  the  defects  in  plaintiff's  complaint  relate 
to  matters  of  form.  Demurrers  and  appeals  on  this  ground  are  not 
encouraged,  and  no  costs  will  be  allowed  to  the  appellant. 

Order  reversed. 


I'/V 


156  PARTIES 


RUSSELL  V.   TOMLINSON   and  HAWKINS.      "     ^^ 
Supreme  Court  of  Errors  of  Connecticut.     1817. 
[Reported  2  Connecticut,  206.] 

The  declaration  alleged,  that  the  defendants,  with  force  and 
arms,  entered  upon  the  land  of  the  plaintiff,  and  with  their  dogs, 
by  them  owned  and  kept,  chased,  worried  and  killed,  twenty-eight 
sheep,  of  the  plaintiff,  of  the  value  of  500  dollars,  contrary  to  the 
statute  law,  in  such  case  made  and  provided.^ 

The  cause  was  tried  at  New  Haven,  January  term,  1817,  before 
Trumbull,  Hosmer  and  Gould,  Js. 

On  the  trial,  it  appeared,  that  the  trespass  complained  of,  in  the 
plaintiff's  declaration,  was  committed  by  two  dogs,  at  the  same 
time,  and  jointly,  but  without  the  consent  or  knowledge  of  the  de- 
fendants, or  either  of  them.  The  defendants  did  not  own  these 
dogs  jointly;  but  one  of  the  defendants  owned  one  dog,  and  the 
other  defendant  owned  the  other  dog.  The  defendants,  therefore, 
contended,  they  were  not  jointly  liable  for  the  injury  done  by  dogs, 
thus  owned  by  them  severally.  But  the  court  charged  the  jury, 
that  if  they  should  find  that  the  plaintiff's  sheep  were  worried  and 
killed  by  dogs,  as  set  forth  in  the  declaration,  and  that  each  of 
the  defendants  owned  one  of  those  dogs,  they  must  find  both  of  the 
defendants  guilty,  and  award  damages  against  them  in  the  plain- 
tiff's favour.  The  jury  found  a  verdict  against  the  defendants; 
and  they  moved  for  a  new  trial,  on  the  ground  of  a  misdirection,"^  ^ 
This  motion  was  reserved  for  the  consideration  and  advice  of  the 
nine  Judges. 

Swift,  C.  J.-  Owners  are  responsible  for  the  mischief  done  by 
their  dogs ;  but  no  man  can  be  liable  for  the  mischief  done  by  the 
dog  of  another,  unless  he  had  some  agency  in  causing  the  dog  to  do 
it.  When  the  dogs  of  several  persons  do  mischief  together,  each 
owner  is  only  liable  for  the  mischief  done  by  his  own  dog;  and  it 
would  be  repugnant  to  the  plainest  principles  of  justice,  to  say,  that 
the  dogs  of  different  persons,  by  joining  in  doing  mischief,  could 

1  This  statute  provides,  "  That  the  owner  or  owners  of  any  dog  or  dogs 
shall  be  responsible  for  all  damages,  which  such  dog  or  dogs  may  do,  by  wound- 
ing or  destroying  sheep,  although  such  owner  or  owners,  may  not  have  known 
such  dog  or  dogs  to  be  accustomed  to  do  such  mischief;  and  all  such  damages 
may  be  recovered  by  action  of  trespass  against  such  owner  or  owners."  1 
Stat.  Conn.,  tit.  14.5,  c.  2. 

2  The  concurring  opinion  of  Gould,  .T.,  is  omitted.  —  Ed. 


MATTHEWS   V.   D.   L.    &   W.   R.   CO.   AND  N.    P.   R.    CO.  157 

make  their  owners  jointly  liable.  This  would  be  giving  them  a 
power  of  agency,  which  no  animal  was  ever  supposed  to  possess. 
It  is  true,  that  there  may  be  some  difficulty  in  ascertaining,  in 
separate  actions,  the  quantum  of  damage  done  by  the  dog  of  each; 
but  this  can  be  no  reason  why  one  man  should  be  accountable  for 
mischief  done  by  the  dog  of  another. 

I  would  advise  that  a  new  trial  be  granted.  .  .  . 

The  other  Judges  were  of  the  same  opinion. 

^  /      JmJ   New  trial  to  he,  granted.^  '     ^ ,        ^  ^t 

/      MATTHEWS  v.  THE  DELAWARE,  LACKAWANNA  AND        ^       ,V 
^  WESTERN     RAILROAD      COMPANY     and     THE  C^ 

NEWARK  PASSENGER  RAILWAY  COMPANY. 

Supreme  Court  of  New  Jersey.     1893. 
[Reported  56  New  Jersey  Law,  34.1 

Matthews,  the  plaintiff,  brought  an  action  of  tort  in  the  Essex 
Circuit  against  the  defendants  to  recover  damages  for  an  injury 
received  in  a  colhsion  between  a  locomotive  of  the  railroad  com- 
pany and  a  car  (in  which  he  was  a  passenger)  of  the  railway 
company. 

There  was  a  verdict  in  favor  of  the  railway  company  and  against 
the  railroad  company. 

The  railroad  company  obtained  a  rule  to  show  cause  why  the 
verdict  against  it  should  not  be  set  aside. 

Plaintiff  obtained  a  rule  to  show  cause  why  the  verdict  in  favor 
of  the  railway  company  should  not  be  set  aside. 

The  rules  were  consolidated  and  certified  to  this  court  for  its 
advisory  opinion. 

1  Denny  v.  Correll,  9  Ind.  72;  Cogswell  v.  Murphy,  46  la.  44;  State, 
Nierenberg,  Prosecutor  v.  Wood,  59  N.  J.  L.  112,  35  Atl.  654,  accord. 
McAdams  v.  Sutton,  24  Oh.  St.  333  (statutory),  contra.  Compare  Sadler  v. 
G.  W.  Ry.  Co.,  [1896]  A.  C.  4.50  (nuisance);  Munday  v.  South  Metrop.  Elec. 
Light  Co.,  (1913)  29  Times  Law  Rep.  346  (nuisance);  Brose  v.  Twin  Falls 
Land  &  Water  Co.,  24  Ida.  266,  133  Pac.  673,  46  L.  R.  A.  (n.  s.),  1187  (action 
against  successive  owners  of  land  on  which  nuisance  was  maintained) ;  Dickey 
V.  Willis,  215  Mass.  292,  102  N.  E.  336  (deceit) ;  Strawbridge  v.  Stem,  112  Mich. 
16,  70  N.  W.  331  (conversion);  Chipman  v.  Palmer,  77  N.  Y.  51  (nuisance); 
Little  Schuylkill  Nav.  Co.  v.  Richards's  Administrator,  57  Pa.  142,  98  Am.  Dec. 
209;  Swain  v.  Tennessee  Copper  Co.,  Ill  Tenn.  430,  78  S.  W.  93  (nuisance); 
Day  V.  Louisville  Coal  &  Coke  Co.,  60  W.  Va.  27,  53  S.  E.  776,  10  L.  R.  A. 
(n.  8.),  167  (nuisance).  —  Ed. 


158  PARTIES 

Argued  at  June  Term,  1893,  before  Beasley,  Chief  Justice, 
and  Justices  Dixon,  Magie  and  Garrison. 

Magie,  J.  Counsel  for  the  railroad  company  first  urges  that 
the  verdict  finding  it  to  have  been  neghgent  was  not  supported  by 
evidence  or  was  contrary  to  the  weight  of  evidence. 

It  is  unnecessary  to  review  in  detail  the  case.  The  discussion 
of  counsel  was  thorough  and  exhaustive,  and  much  consideration 
has  been  given  to  the  evidence.  The  conclusion  reached  is  that  ^ 
there  was  evidence  of  the  neglect  of  the  railroad  company  to  give 
due  notice  of  the  approach  of  its  train  sufficient  to  go  to  the  jury, 
and  although  there  was  much  opposing  evidence,  it  did  not  so 
preponderate  as  to  require  or  justify  a  new  trial  on  this  ground. 

It  is  next  claimed  that  the  verdict  awarded  excessive  damages.  • 
The  amount  awarded  was  large,  but,  considering  the  proofs  of 
injury,  it  was  not  so  large  as  to  indicate  mistake  or  misconduct  on 
the  part  of  the  jury.      The  verdict  ought  not  to  be  disturbed  on 
that  ground. 

It  is  lastly  contended  on  behalf  of  the  railroad  company  that  the 
verdict  against  it  should  be  set  aside  because  there  was  no  proof 
of  joint  negligence  on  the  part  of  the  two  defendants. 

The  claim  is,  as  I  understand  from  the  argument,  that  these 
defendants  cannot  be  jointly  sued  for  an  injury  occasioned  by  such 

a  collision,  unless  the  neglect  which  caused  the  collision  was  of  a , 

joint  duty  owed  by  both  defendants,  and  that,  on  failure  of  proof 
of  a  joint  duty  and  joint  neglect,  neither  defendant  can  be  held,   y" 

If  this  contention  is  sound  it  is  obvious  that  the  declaration  was 
demurrable,  for  it  charged  that  the  railroad  company  owed  to 
plaintiff  a  duty  to  give  notice  of  the  passage  of  its  trains  across  the 
tracks  of  the  railway  company,  and  that  the  railway  company 
owed  to  him  a  duty  to  take  precautions  in  carrying  him  across  the 
tracks  of  the  railroad  company,  and  it  averred  that  each  company 
had  neglected  to  perform  the  several  duties  thus  charged,  and  that 
thereby  the  collision  which  injured  plaintiff  occurred. 

But  the  contention  is  wholly  inachnissible,  and  the  declaration 
would  plainly  have  been  good  on  demurrer.  The  error  arises  out 
of  a  misconception  as  to  the  nature  of  a  joint  tort. 

If  two  or  more  persons  owe  to  another  the  same  duty,  and  by  -^ 
theif  common  neglect  of  that  duty  he  is  injured,  doubtless  the  tort 
is  joint,  and  upon  well-settled  principles  each,  any  or  all  of  the 
tort-feasors  may  be  held.  But  when  each  of  two  or  more  persons 
owes  to  another  a  separate  duty  which  each  wrongfully  neglects  to 
perform,  then,  although  the  duties  were  diverse  and  disconnected 


MATTHEWS   V.    D.    L.    &   W.    R.    CO.    AND   N.    P.    R.    CO.  159 

and  the  negligence  of  each  was  -without  concert,  if  such  several 
neglects  concurred  and  united  together  in  causing  injurj%  the  tort 
is  equally  joint  and  the  tort-feasors  are  subject  to  a  like  liability. 

This  doctrine  was  announced  in  this  court  by  the  Chief  Justice 
in  Newman  v.  Fowler,  8  Vroom,  89. 

The  like  doctrine  was  applied  by  the  Court  of  Appeals  in  New 
York  to  a  case  identical  with  that  under  consideration.  Cole- 
grove  V.  New  York  and  New  Haven  Railroad  Co.,  20  N.  Y.  492. 
That  case  has  been  mentioned  with  approval  in  Barrett  v.  Third 
Avenue  Railway  Co.,  45  N.  Y.  628;  Slater  v.  Mersereau,  64  Id.  138; 
Arctic  Fire  Insurance  Co.  v.  Austin,  69  Id.  470;  see,  also.  Cooper  v. 
Eastern  Transportation  Co.,  75  Id.  116.  The  same  view  is  taken 
in  other  courts.  Wabash,  St.  Louis  and  Pittsburg  Railway  Co.  v. 
Shacklet,  105  111.  364;  Transit  Co.  v.  Shacklet,  119  Id.  232;  Carter- 
ville  V.  Cook,  129  Id.  152;  Cuddy  v.  Horn,  46  Mich.  596.  I  have 
not  discovered  any  dissent  from  this  doctrine  except  in  Pennsyl- 
vania, the  courts  of  which  state,  while  admitting  the  general  rule, 
make  an  exception  of  cases  where  the  injured  party  was  the  pas- 
senger of  a  carrier  whose  negligence  concurred  with  the  negligence 
of  another  in  producing  the  injury.  The  reason  of  this  exception, 
however,  is  that  those  courts  adhere  to  the  doctrine  of  Thorogood 
V.  Bryan,  8  C.  B.  114,  which  has  always  been  repudiated  in  New 
Jersey,  and  is  now  expressly  overruled  in  England.  The  Bernina, 
L.  R.,  12  P.  Div.  58;  S.  C,  L.  R.,  13  App.  Cas.  1.  The  Pennsyl- 
vania cases  are  Lockhart  v.  Lichenthaler,  46  Pa.  St.  151 ;  Carlisle  v. 
Brisbane,  113  Id.  544;  Dean  v.  Pennsylvania  Railroad  Co.,  129  Id. 
514;  Klauder  v.  McGrath,  35  Id.  128;  North  Penn.  Railway  Co. 
V.  jMahone}',  57  Id.  187. 

The  declaration,  therefore,  set  out  a  good  cause  of  action  against 
two  joint  tort-feasors,  and  there  can  be  no  doubt  that  in  such  an 
action  one  defendant  may  be  held  liable  alone  if  the  proof  justify  it. 

The  verdict  against  the  railroad  company  should  not  be  dis-- 
turbed. 

The  verdict  in  favor  of  the  railway  company  is  also  questioned 
by  the  plaintiff. 

There  was  strong  evidence  of  its  negligence  tending  to  produce 
plaintiff's  injury,  but  it  was  encountered  by  contradictory  evidence. 
The  question  was  fairly  submitted  to  the  jury  and  no  sufficient 
reason  to  disturb  their  verdict  appears. 

Let  the  Circuit  Court  be  advised  to  discharge  both  rules. ^ 

1  See  Bullock  v.  London  General  Omnibus  Co.,  [1907]  1  K.  B.  264; 
Feneff  v.  Boston  &  Maine  R.  R.,   196  Mass.  575,  82  N.  E.  705;    Mauniee 


160  PARTIES 

y      CITY   OF   PEORIA   et  al.   v.   SIMPSON. 
Supreme  Court  of  Illinois.     1884. 

[Reported  110  Illinois,  294.] 

Scott,  J.^  This  was  an  action  to  recover  for  personal  injuries, 
and  was  brought  by  Robert  Simpson,  against  the  city  of  Peoria 
and  Magnus  Densberger.  It  is  averred  in  the  declaration  that 
defendant  Densberger  was  the  owner  of  the  premises  situated  on 
Water  street,  in  the  city  of  Peoria,  at  the  place  where  plaintiff  was 
injured;  that  there  was  an  opening  into  the  cellar  or  vault  in  front 
of  the  premises,  the  covering  to  which  constituted  a  part  of  the 
usual  sidewalk;  that  the  owner  of  the  premises  wrongfully  and 
negligently  permitted  such  opening  to  be  and  remain  insufficiently 
and  defectively  covered,  whereby  the  sidewalk  was  left  in  an  unsafe 
condition;  and  that  at  that  time,  and  prior  thereto,  the  city  was 
possessed  of  and  had  control  of  the  sidewalk  in  front  of  the  prem- 
ises, and  ought  to  have  kept  the  same  in  good  repair  and  safe  condi- 
tion. It  is  then  further  averred  as  a  ground  for  recovery,  that  both 
defendants,  well  knowing  the  unsafe  and  dangerous  condition  of  the 
sidewalk,  wrongfully  and  negligently  suffered  the  covering  to  such 
opening  to  remain  in  an  insecure  and  unsafe  condition,  so  that 
while  plaintiff  was  passing  over  the  sidewalk,  in  the  observance  of 
due  care,  it  broke,  and  he  fell  through  the  opening,  into  the  cellar 
or  vault,  and  thereby  sustained  severe  injuries,  by  which  he  be- 
came paralyzed  in  his  back  and  arm.  The  declaration  contains 
the  usual  averments  as  to  the  expenditure  of  large  sums  of  money 
in  the  endeavor  to  be  healed  and  cured.  The  second  count  con- 
tains an  averment  the  covering  to  the  opening  was  dangerous  at  the 
time  the  owner  let  the  premises  to  the  occupying  tenant,  and  the 
condition  of  the  covering  at  the  time  rendered  the  sidewalk  dan- 
gerous, and  that  defendants  had  notice  of  its  dangerous  condition. 

Valley,  etc.,  Co.  v.  Montgomery,  81  Oh.  St.  426,  91  N.  E.  181,  26  L.  R.  A. 
(n.  s.),  987. 

As  to  joinder  of  principal  and  agent  in  an  action  of  tort,  see  Parsons  v. 
Winchell,  5  Cush.  (Mass.),  592,  52  Am.  Dec.  745;  Hewett  v.  Swift,  3  Allen 
(Mass.),  420;  Mayberry  v.  Northern  Pac.  Ry.  Co.,  100  Minn.  79,  110  N.  W. 
356,  12  L.  R.  A.  (n.  s.),  675,  10  Ann.  Cas.  754;  French?;.  Central  Construction 
Co.,  76  Oh.  St.  509,  81  N.  E.  751,  12  L.  R.  A.  (n.  s.),  669;  Dicey,  Parties,  pp. 
441,  465;  Cooley,  Torts,  3d  ed.,  p.  241.  —  Ed. 

^  A  part  of  the  opinion  is  omitted.  The  judgment  was  reversed  and  the 
cause  remanded  for  a  new  trial  because  of  erroneous  instructions.  —  Ed. 


CITY   OF   PEORIA   V.    SIMPSON  161 

The  amended  declaration  contains  an  averment  the  opening  was 
covered  with  a  wooden  door,  of  a  height  and  length  prohibited  by 
an  ordinance  of  the  city,  and  that  such  doors  were  at  the  time,  and 
prior  thereto  had  been,  a  nuisance,  and  that  the  city  had  notice 
thereof.  Separate  demurrers  filed  by  each  defendant  were  over- 
ruled by  the  court,  and  thereupon  pleas  of  not  guilty  were  filed  by 
each  defendant.  A  trial  was  had  before  a  jury,  who  returned  a 
verdict  finding  the  issues  for  plaintiff,  and  assessing  his  damages 
at  $6000.  Motions  for  a  new  trial  and  in  arrest  of  judgment  were 
severally  overruled,  and  the  court  entered  judgment  on  the  ver- 
dict. That  judgment  was  afterwards  affirmed  in  the  Appellate 
Court  for  the  Second  District.  The  case  comes  to  this  court  on 
the  appeal  of  the  city  of  Peoria,  and  since  then  defendant  Dens- 
berger  has  also  assigned  errors  on  the  same  record.  .  .  . 

A  question  not  entirely  free  from  doubt  is,  can  the  owner  of  the 
premises  and  the  city  be  held  jointly  liable  for  the  injuries  to  plain- 
tiff in  the  same  action.  It  is  said  this  question  cannot  now  be  con- 
sidered, for  the  reason  defendants  did  not  stand  by  their  demurrers, 
the  rule  being  familiar  that  a  party  may  not  at  thesame  time  plead 
_and  demur_to^the  same  pleading.  It  is  also  true  any  substantial 
defect  in  a  declaration  can  always  be  taken  advantage  of  by  a 
motion  in  arrest  of  judgment,  and  that  was  done  in  this  case. 

It  will  be  observed  both  defendants  are  charged  with  negligence 
as  to  the  condition  of  the  sidewalk  that  occasioned  the  injury  to 
plaintiff,  and  why  may  they  not  be  jointly  Hable  in  the  same  ac- 
tion ?  The  owner  is  liable,  if  at  all,  because  the  premises  were  let 
with  the  nuisance  upon  them,  and  that  liability,  if  any  existed, 
continued,  notwithstanding  the  possession  of  the  tenant,  and  con- 
tinued up  to  the  time  of  the  accident.  On  the  hypothesis  the  city 
had  notice,  it  was  the  duty  of  the  municipal  authorities  to  make 
repairs  at  and  before  the  injury  to  plaintiff.  The  same  duty  rested 
upon  the  owner  and  the  municipality,  at  the  same  time,  to  make 
such  repairs,  and  both  may  therefore  be  said  to  be  guilty  of  negli- 
gence in  respect  to  the  same  thing.  Had  the  action  been  brought 
against  the  owner  and  the  tenant,  no  doubt  it  could  have  been 
maintained  had  it  been  averred  and  proved  both  were  under  obli- 
gations to  make  repairs,  and  both  were  guilty  of  negligence  in  that 
respect.  The  averment  is,  it  was  the  duty  of  both  the  owner  and 
the  municipality  to  repair  the  sidewalk,  and  both  are  charged  ^vith 
the  omission  of  a  common  duty  in  that  regard,  —  and  what  reason 
is  there  why  they  may  not  be  joined  in  the  same  action  ?  Un- 
doubtedly the  rule  is,  for  separate  acts  of  trespass  separately  done, 


**-  v/?*" ' 


n/    .^  •#,  t  #€^  ^t^  (/^ 

'162  ^        Parties'  ! 

f^i^i^'-  w      ^^.  £^j,  positive  acts  negligently  done,  although  a  single  injury  is  in-"^ 

flieted,  the  parties  can  not  be  jointly  held  liable  to  the  party  in-  / 
jured.  If  there  is  no  concert  of  action  —  no  common  intent  — 
there  is  no  joint  liability.  This  rule  is  very  well  settled  by  author- 
ity: Hilhard  on  Torts,  sec.  10,  p.  315;  Nav.  Railroad  and  Coal 
Co.  V.  Richards,  57  Pa.  St.  142;  Shearman  &  Redfield  on  Negli- 
gence, 58;  Bard  v.  Yohn,  26  Pa.  St.  482. 

But  a  different  principle  applies  where  the  injury  is  the  result  of 
a  neglect  to  perform  a  common  duty  resting  on  two  or  more  persons, 
although  there  may  be  no  concert  of  action  between  them.  In 
such  cases  the  party  injured  may  have  his  election  to  sue  all  parties 
owing  the  common  duty,  or  each  separately,  treating  the  liability 
as  joint  or  separate.  A  familiar  case  illustrating  the  principle  is, 
where  a  person  is  injured  by  the  falling  of  a  party  wall  erected  on 
the  dividing  line  between  two  lots  owned  by  different  persons,  the 
action  is  maintainable  jointly  against  both  owners.  It  is  for  the 
^  reason  it  was  a  common  duty  of  both  owners  to  make  the  repairs. 

vj  Another  instance  is,  where  a  passenger  is  injured  by  a  negligent 

r  collision  of  the  trains  of  two  railroad  companies,  he  may  maintain 

'  one  action  against  both.     And  so  it  has  been  held  an  action  may 

be  maintained  jointly  against  towns,  where  the  law  will  authorize 
such  an  action,  for  an  injury  resulting  from  the  insufficiency  of  a 
bridge  which  both  towns  are  under  an  obligation  to  maintain. 
Klauder  v.  McGrath,  36  Pa.  St.  128;  Colegrove  v.  N.  Y.,  B.  N.  and 
N.  H.  R.  R.  Co.,  6  Duer,  382;  Same  v.  Same,  6  Smith  (N.  Y.),  492; 
Peckham  v.  Burlington,  1  Vt.  34.  In  Bryant  v.  Bigelow  Carpet 
Co.,  1  Mass.  491,  it  was  held,  where  the  negligent  acts  of  two  de- 
fendants combined  to  produce  the  injury  to  plaintiff,  a  joint  action 
could  be  maintained  against  both  negligent  parties. 

It  will  be  seen  the  rule  recognized  rests  on  sound  principle,  — "H 
that  is,  where  an  injury  results  from  the  concurrent  negligence  of        » 
several  persons,  all  being  under  a  common  duty  to  observe  care,  jp^ 
though  that  duty  is  separate  with  reference  to  that  which  causes^ 
the  injury,  all  are  jointly  liable.      Applying  this  principle  to  the 
case  being  considered,  it  would  seem  to  be  conclusive  as  to  the  point  -^ 
made,   the  city  and  the  owner  are  not  jointly  liable  for  the    • 
injury  to  plaintiff.      If  it  shall  be  ascertained  it  was  the  duty  of 
both  the  owner  and  the  city  to  k(^op  the  sidewalk  in  repair,  then 
the  failure  to  do  so  was  a  common  neglect,  and  the  case  comes  pre- 
cisely within  the  principle  stated.     Whether  both  or  either  party 
was  under  su(!h  duty,  depends  on  facts  to  be  found  by  the  jury  in 
the  trial  court. 


SUMNER   V.    TILESTON  163 

As  respects  the  point  suggested  whether  the  city  could  recover 
against  the  owner  in  case  it  was  compelled  to  pay  the  judgment,  is 
a  question  that  does  not  affect  the  principle  being  considered. 
How  the  law  may  be  on  that  subject  need  not  now  be  determined. 
It  is  a  question  in  which  plaintiff  can  have  no  interest.  As  was 
said  in  Bryant  v.  Bigelow  Carpet  Co.,  swpra,  the  question  of  their 
relative  rights  and  habilities  will  be  left  to  future  litigation  or 
adjustment  between  defendants.      It  is  enough  that  it  appears  _ 

both  defendants  may  have  been  guilty  of  negligence  in  regard  to 

that  which  caused  the  injury  to  plaintiff,  to  enable  him  to  maintain 
his  action  against  them  jointly.  ... 

Judgment  reversed}    -         j 

I       SUMNER  V.   TII.ESTON   et  al 
Supreme  Judicial  Court  of  Massachusetts.     1826. 
[Reported  4  Pickering,  308.] 

This  was  an  action  of  the  case  against  E.  Tilesfcon,  M.  Hollings- 
worth  and  A.  Fuller.  The  declaration  alleged  that  the  defendants 
wrongfully  chd  erect  "  a  certain  dam  "  in  and  across  Neponset 
river  and  "  did  shorten  and  heighten  their  said  dam,"  by  means 
whereof  the  water  was  penned  up  so  as  to  flow  back  and  obstruct 
the  wheels  of  the  plaintiff's  mills. 

The  defendants  pleaded  jointly  the  general  issue  and  the  statute 
of  limitations.  At  an  adjourned  session  of  this  Court  in  June 
1826,  Tileston  and  Hollingsworth  pleaded  in  abatement  the  death 
of  Fuller  since  the  adjournment  in  February  preceding;  to  which 
plea  the  plaintiff  demurred. 

Putnam,  J.,  delivered  the  opinion  of  the  Court.  It  seems  to  be 
settled,  that  where  only  one  tenant  in  common  of  real  estate  is 

1  Kansas  City  v.  File,  60  Kan.  157,  55  Pac.  877  (action  against  electric  light 
company  and  city);  Fortmeyer  v.  National  Biscuit  Co.,  116  Minn.  158, 
133  N.  W.  461,  37  L.  R.  A.  (n.  s.),  569  (action  again.st  lessor,  lessee  and  city), 
accord.  But  see  Mooney  r.  Edison  Electric  Illuminating  Co.,  185  Mass.  547, 
70  N.  E.  933  (action  against  electric  light  company  and  street  railway  for 
violation  of  common  law  duty  and  against  city  for  violation  of  statutory  duty) ; 
Village  of  Mineral  City  v.  Gilbow,  81  Oh.  St.  263,  90  N.  E.  800,  25  L.  R.  A. 
(n.  s.),  627  (action  against  land  owner  and  village);  Dutton  v.  Lansdowne 
Borough,  198  Pa.  563,  48  Atl.  494,  53  L.  R.  A.  469,  82  Am.  St.  Rep.  814  (action 
against  land  owner  and  borough). 

It  is  not  necessary  to  join  all  who  owe  the  duty  to  the  plaintiff.  City  of 
Topeka  v.  Sherwood,  39  Kan.  690,  18  Pac.  933.  —  Ed. 


164  PARTIES 

sued  in  trespass  for  anything  done  in  regard  to  the  estate  in  com- 
mon, he  may  plead  that  matter  in  abatement,  1  Chit.  PI.  71,  6th 
Amer,  ed.,  95,  96,  100;  and  the  counsel  for  the  defendants  contend 
that  this  rule  applies  to  the  case  at  bar.  We  think  however  that 
it  should  appear  from  the  pleadings,  that  the  defendants  were 
charged  by  reason  of  their  holding  certain  real  estate  as  joint 
tenants  or  tenants  in  common.  In  the  case  cited  from  7  H.  4.  8. 
the  defendant,  the  abbot  of  Stratford,  was  sued  for  not  repairing 
a  wall  upon  the  bank  of  the  Thames,  which  he  ought  to  have 
repaired  hy  reason  of  his  holding  certain  land,  for  the  default  of 
reparation  whereof  the  lands  of  the  plaintiff  were  overflowed. 
But  in  the  case  at  bar  it  does  not  appear  that  the  defendants  are 
charged  as  tenants  in  common  or  as  joint  tenants.  The  plain- 
tiff declares  that  they  have  wrongfully  prevented  the  water  from 
running  off  from  his  mills,  by  making  a  dam  below  across  the 
river,  and  to  this  the  defendants  plead  the  general  issue.  It  does 
not  appear  that  their  defence  depended  upon  the  title  to  the  land 
where  the  plaintiff  alleges  that  they  built  the  dam,  and  it  may  turn 
out  on  the  trial,  that  they  defend  on  the  ground  that  they  never 
did  the  act  of  which  the  plaintiff  complains.  The  plaintiff  charges 
them  as  wrongdoers.  The  action  is  merely  ex  delicto,  and  the  title 
of  the  defendants  would  not  be  affected  by  a  verdict  upon  the  issue. 
The  plea  in  abatement  states  that  one  of  the  defendants  died 
after  the  adjournment  from  February  and  before  the  sittings  in 
June.  Now  that  fact  is  immaterial,  because  in  actions  for  torts 
the  plea  of  the  general  issue  by  many  defendants  is  in  its  legal  effect 
several.  One  only  or  more  may  be  convicted  and  the  rest  acquitted 
or  they  may  be  all  convicted  or  all  acquitted.  See  Chitty's  PL, 
6th  Amer.  ed.,  99.  We  are  of  opinion  that  the  death  of  one  under 
these  circumstances  is  not  a  sufficient  cause  to  prevent  the  plaintiff 
from  proceeding  against  the  others.  See  Revised  Stat.,  c.  93,  §  12. 
/2U4^^     /L*^  Av    hiyhuJif'  Respondeas  ouster.^ 

1  See  Low  v.  Mumford,  14  Johns.  (N.  Y.),  426;  1  Wms.  Saund.  291  f  and  g; 
Dicey,  Parties,  p.  438. 

As  to  non-joinder  of  defendants  when  the  tort  is  connected  with  a  contract, 
see  1  Wms.  Saund,  291  e  and  f ;  Dicey,  Parties,  p.  437.  As  to  actions  against 
common  carriers,  inn-keepers,  etc.,  founded  on  the  custom  of  the  realm,  see 
Boulston  V.  Sandiford,  Skin.  278.  —  Ed. 


RULES  OF  THE  SUPREME  COURT  (eNGLANd)        165 

/    Rules  of  the  Supreme  Court,  1883  (England),  Order  XVI. 

Rule  1.^  All  persons  may  be  joined  in  one  action  as  plaintiffs, 
in  whom  any  right  to  relief  [in  respect  of  or  arising  out  of  the  same 
transaction  or  series  of  transactions]  is  alleged  to  exist,  wtiether 
jointly,  severally,  or  in  the  alternative,  [where  if  such  persons 
brought  separate  actions  any  common  question  of  law  or  fact  would 
arise;  provided  that,  if  upon  the  application  of  any  defendant  it 
shall  appear  that  such  joinder  may  embarrass  or  delay  the  trial  of 
the  action,  the  Court  or  a  Judge  may  order  separate  trials,  or  make 
such  other  order  as  may  be  expedient],  and  judgment  may  be  given 
for  such  one  or  more  of  the  plaintiffs  as  may  be  found  to  be  entitled 
to  relief,  for  such  relief  as  he  or  they  may  be  entitled  to,  without 
any  amendment.  But  the  defendant,  though  unsuccessful,  shall 
be  entitled  to  his  costs  occasioned  by  so  joining  any  person  who 
shall  not  be  found  entitled  to  relief  unless  the  Court  or  a  Judge  in 
disposing  of  the  costs  shall  otherwise  direct. 

Rule  2.  Where  an  action  has  been  commenced  in  the  name  of 
the  wrong  person  as  plaintiff,  or  where  it  is  doubtful  whether  it  has 
been  commenced  in  the  name  of  the  right  plaintiff,  the  Court  or  a 
Judge  may,  if  satisfied  that  it  has  been  so  commenced  through  a 
hond-fide  mistake,  and  that  it  is  necessary  for  the  determination  of 
the  real  matter  in  dispute  so  to  do,  order  any  other  person  to  be 
substituted  or  added  as  plaintiff  upon  such  terms  as  may  be  just. 

Rule  3.  Where  in  an  action  any  person  has  been  improperly 
or  unnecessarily  joined  as  a  co-plaintiff,  and  a  defendant  has  set  up 
a  counterclaim  or  set  off,  he  may  obtain  the  benefit  thereof  by 
establishing  his  set-off  or  counterclaim  as  against  the  parties  other 
than  the  co-plaintiff  so  joined,  notwithstanding  the  misjoinder  of 
such  plaintiff  or  any  proceeding  consequent  thereon. 

Rule  4.  All  persons  may  be  joined  as  defendants  against  whom 
the  right  to  any  relief  is  alleged  to  exist,  whether  jointly,  severally, 
or  in  the  alternative.  And  judgment  may  be  given  against  such 
one  or  more  of  the  defendants  as  may  be  found  to  be  liable,  accord- 
ing to  their  respective  liabilities,  without  any  amendment. 

Rule  5.  It  shall  not  be  necessary  that  every  defendant  shall  be 
interested  as  to  all  the  relief  prayed  for,  or  as  to  every  cause  of 
action  included  in  any  proceeding  against  him;  but  the  Court  or  a 
Judge  may  make  such  order  as  may  appear  just  to  prevent  any 
defendant  from  being  embarrassed  or  put  to  expense   by  being 

1  The  words  included  within  the  brackets  formed  no  part  of  the  rule  until 
1896. 


K' 


166  PARTIES 

required  to  attend  any  proceedings  in  which  he  may  have  no 
interest. 

Rule  6.  The  plaintiff  may,  at  his  option,  join  as  parties  to  the 
same  action  all  or  any  of  the  persons  severally,  or  jointly  and  sever- 
ally liable  on  any  one  contract,  including  parties  to  bills  of  exchange 
and  promissory  notes. 

Rule  7.  Where  the  plaintiff  is  in  doubt  as  to  the  person  from 
whom  he  is  entitled  to  redress,  he  may,  in  such  manner  as  herein- 
after mentioned,  or  as  may  be  prescribed  by  any  special  order,  join 
two  or  more  defendants,  to  the  intent  that  the  question  as  to  which, 
if  any,  of  the  defendants  is  liable,  and  to  what  extent,  may  be  de- 
termined as  between  all  parties. 

Rule  8.  Trustees,  executors,  and  administrators  may  sue  and 
be  sued  on  behalf  of  or  as  representing  the  property  or  estate  of 
which  they  are  trustees  or  representatives,  without  joining  any  of 
the  persons  beneficially  interested  in  the  trust  or  estate,  and  shall 
be  considered  as  representing  such  persons;  but  the  Court  or  a 
Judge  may,  at  any  stage  of  the  proceedings,  order  any  of  such  per- 
sons to  be  made  parties,  either  in  addition  to  or  in  lieu  of  the  pre- 
viously existing  parties. 

[This  rule  shall  apply  to  trustees,  executors  and  administrators, 
sued  in  proceedings  to  enforce  a  security  by  foreclosure  or  other- 
wise.] 

Rule  9.  Where  there  are  numerous  persons  having  the  same 
interest  in  one  cause  or  matter,  one  or  more  of  such  persons  may 
sue  or  be  sued,  or  may  be  authorized  by  the  Court  or  a  Judge  to 
defend  in  such  cause  or  matter,  on  behalf  or  for  the  benefit  of  all 
persons  so  interested. 

Rule  11.  No  cause  or  matter  shall  be  defeated  by  reason  of  the 
misjoinder  or  nonjoinder  of  parties,  and  the  Court  may  in  every 
cause  or  matter  deal  with  the  matter  in  controversy  so  far  as  re- 
gards the  rights  and  interests  of  the  parties  actually  before  it.  The 
Court  or  a  Judge  may,  at  any  stage  of  the  proceedings,  either  upon 
or  without  the  application  of  either  party,  and  on  such  terms  as 
may  appear  to  the  Court  or  a  Judge  to  be  just,  order  that  the  names 
of  any  parties  improperly  joined,  whether  as  plaintiffs  or  as  defend- 
ants, be  struck  out,  and  that  the  names  of  any  parties,  whether 
plaintiffs  or  defendants,  who  ought  to  have  been  joined,  or  whose 
presence  l^efore  the  Court  may  be  necessary  in  order  to  enable  the 
Court  effectually  and  completely  to  adjudicate  upon  and  settle  all 
the  questions  involved  in  the  cause  or  matter,  be  added.  No  per- 
son shall  be  added  as  a  plaintiff  suing  without  a  next  friend,  or  as 


OHIO    GENERAL   CODE  167 

the  next  friend  of  a  plaintiff  under  any  disability,  without  his  own 
consent  in  writing  thereto.  Every  party  whose  name  is  so  added 
as  defendant  shall  be  served  with  a  wTit  of  summons  or  notice  in 
manner  hereinafter  mentioned,  or  in  such  manner  as  may  be  pre- 
scribed by  any  special  order,  and  the  proceedings  as  against  such 
party  shall  be  deemed  to  have  begun  only  on  the  service  of  such 
writ  or  notice. 

Rule  12.  Any  application  to  add  or  strike  out  or  substitute  a 
plaintiff  or  defendant  may  be  made  to  the  Court  or  a  Judge  at  anj^ 
time  before  trial  by  motion  or  summons,  or  at  the  trial  of  the  action 
in  a  summary  manner. 

Rule  13.  Where  a  defendant  is  added  or  substituted,  the  plain- 
tiff shall,  unless  otherwise  ordered  by  the  Court  or  a  Judge,  file  an 
amended  copy  of  and  sue  out  a  writ  of  summons,  and  serve  such 
new  defendant  with  such  writ  or  notice  in  lieu  of  service  thereof  in 
the  same  manner  as  original  defendants  are  served. 

Ohio  General  Code. 

Sec.  11241  (25,  26).^  An  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  except  as  provided  in  the  next  three 
succeeding  sections.^  When  a  party  asks  that  he  may  recover  by 
virtue  of  an  assignment,  the  right  of  set-off,  counterclaim  and 
defense,  as  allowed  by  law,  shall  not  be  impaired. 

Sec.  11244  (27).  An  executor,  administrator,  or  guardian,  a 
trustee  of  an  express  trust,  a  person  with  whom,  or  in  whose  name, 
a  contract  is  made  for  the  benefit  of  another,  or  a  person  expressly 
authorized  by  statute,  may  bring  an  action  without  joining  with 
him  the  person  for  whose  benefit  it  is  prosecuted.  Officers  may 
sue  and  be  sued  in  such  name  as  is  authorized  by  law. 

Sec.  11254  (34).  All  persons  having  an  interest  in  the  subject  of 
the  action,  and  in  obtaining  the  rehef  demanded,  may  be  joined  as 
plaintiffs  except  as  otherwise  provided. 

Sec.  11255  (35).  Any  person  may  be  made  a  defendant  who  has 
or  claims  an  interest  in  the  controversy  adverse  to  the  plaintiff,  or 
who  is  a  necessary  party  to  a  complete  determination  or  settlement 
of  a  question  involved  therein. 

Sec.  11256  (36).  Parties  who  are  united  in  interest  must  be 
joined,  as  plaintiffs  or  defendants.      If  the  consent  of  one  who 

^  The  figures  in  parentheses  are  the  section  numbers  of  the  Ohio  Code  of 
Procedure  as  originally  adopted. 

*  The  next  two  succeeding  sections  relate  to  suits  on  forfeited  bonds. 


168  PARTIES 

should  be  joined  as  plaintiff  cannot  be  obtained,  or,  he  is  insane, 
and  the  consent  of  his  guardian  is  not  obtainable,  or  he  has  no 
guardian,  and  that  fact  is  stated  in  the  petition,  he  may  be  made 
a  defendant.  \   .  .  ,  v.-A 

Sec.  11257  (37).  When  the  question  is  one  of  a  common  or 
general  interest  of  many  persons,  or  the  parties  are  very  numerous, 
and  [it]  is  impracticable  to  bring  them  all  before  the  court,  one  or 
more  may  sue  or  defend  for  the  benefit  of  all. 

Sec.  11258  (38).  One  or  more  of  the  persons  severally  liable  on 
an  instrument  may  be  included  in  the  same  action  thereon. 

Sec.  11259.  Parties  to  a  written  instrument  by  initial  letter, 
or  a  contraction  of  the  name,  may  be  so  designated  in  an  action 
thereon. 

Sec.  11260.  A  partnership  formed  for  the  purpose  of  carrying 
on  a  trade  or  business  in  this  state,  or  holding  property  therein, 
may  sue  or  be  sued  by  the  usual  or  ordinary  name  which  it  has 
assumed,  or  by  which  it  is  known.  In  such  case  it  shall  not  be 
necessary  to  allege  or  prove  the  names  of  its  individual  members.    .- 

Sec.  11262  (40).  The  court  may  determine  any  controversy  be- 
tween parties  before  it,  when  it  can  be  done  without  prejudice  to 
the  rights  of  others,  or  by  saving  their  rights.  When  such  deter- 
mination cannot  be  had  without  the  presence  of  other  parties,  the 
court  may  order  them  to  be  brought  in,  or  dismiss  the  action  with- 
out prejudice.  " 

Sec.  11263  (41).  In  an  action  for  the  recovery  of  real  or  per- 
sonal property,  a  person  claiming  an  interest  in  the  property,  on  his 
application,  may  be  made  a  party. 

Sec.  11583  (371).  Judgment  may  be  given  for  or  against  one 
or  more  of  several  plaintiffs  and  for  or  against  one  or  more  of  several 
defendants.  By  the  judgment,  the  court  may  determine  the 
final  rights  of  the  parties  on  either  side,  as  between  themselves, 
and  grant  to  the  defendant  any  affirmative  relief  to  which  he  is 
entitled. 

Sec.  11584  (371).  In  an  action  against  several  defendants,  the 
court  may  render  judgment  against  one  or  more  of  them,  leaving 
the  action  to  proceed  against  the  others,  whenever  a  several  action 
is  proper. 


U» 


/•; 


/ 


'^\ 


THE   NEW   JERSEY   PRACTICE   ACT 


The  New  Jersey  Practice  Act  (1912).^ 


^'^  169 


4.  Subject  to  rules,"  all  persons  claiming  an  interest  in  the  sub- 
ject of  the  action  and  in  obtaining  the  judgment  demanded,  either 
jointly,  severally  or  in  the  alternative,  may  join  as  plaintiffs,  except 
as  otherwise  herein  provided.  And  persons  interested  in  separate 
causes  of  action  may  join  if  the  causes  of  action  have  a  common 
question  of  law  or  fact  and  arose  out  of  the  same  transaction  or 
series  of  transactions. 

5.  If  one  who  may  join  as  plaintiff  declines  to  do  so,  he  may  be 
made  a  defendant,  the  reason  therefor  being  stated  in  the 
complaint. 

6.  Subject  to  rules,^  any  person  may  be  made  a  defendant,  who, 
either  jointl}^,  severally  or  in  the  alternative,  is  alleged  to  have  or 
claim  an  interest  in  the  controversy,  or  in  any  part  thereof,  adverse 
to  the  plaintiff,  or  whom  it  is  necessary  to  make  a  party  for  the 
complete  determination  or  settlement  of  any  question  involved 
therein. 

The  plaintiff  may  join  separate  causes  of  action  against  several 
defendants  if  the  causes  of  action  have  a  common  question  of  law 
or  fact  and  arose  out  of  the  same  transaction  or  series  of  transac- 
tions. 

7.  An  executor,  administrator,  or  trustee,  of  an  express  trust 
(including  one  with  whom  a  contract  is  made  for  the  benefit  of 
another)  may  sue  or  be  sued  without  joining  the  person  beneficially 
interested  in  the  suit. 

8.  The  court  may  determine  the  controversy  as  between  the 
parties  before  it,  where  it  can  do  so  without  prejudice  to  the  rights 

1  N.  J.  Pamph.  L.  1912,  p.  378. 

2  Rule  6  in  the  schedule  attached  to  the  Act  pro\'ides  that  "  In  suits  on  a 
joint  contract,  whether  partnership  or  otherwise,  the  personal  representatives 
of  a  deceased  co-contractor  may  join,  as  plaintiffs,  and  be  joined,  as  defendants, 
with  the  survivors  or  survivor;  provided,  that  where  the  estate  of  the  decedent 
is  in  settlement  in  this  State,  as  an  insolvent  estate,  his  personal  representa- 
tives cannot  be  joined  as  defendants."  —  Ed. 

^  Rule  7  provides  that  "  Persons  severally  and  immediately  liable  on  the 
same  obhgation  or  instrument,  including  parties  to  bills  of  exchange  and 
promissory  notes;  also  indorsers,  guarantors,  and  sureties,  whether  on  the 
same  or  by  a  separate  instrument,  may  all,  or  any  of  them,  be  joined  as  defend- 
ants, and  a  joint  judgment  may  be  rendered  against  those  so  joined.  .  .  ." 

Rule  8  provides  that  "  Persons  may  be  joined  as  defendants  against  whom 
the  right  to  relief  is  alleged  to  exist  in  the  alternative,  although  a  right  to  rehef 
against  one  may  be  inconsistent  with  a  right  to  relief  against  the  other."  — 
Ed. 


170  PARTIES 

of  others;  but  where  a  complete  termination  cannot  be  had  without 
the  presence  of  other  parties,  the  court  may  direct  them  to  be 
brought  in.  Where  a  person,  not  a  party,  has  an  interest  or  title 
which  the  judgment  will  affect,  the  court,  on  his  application,  shall 
direct  him  to  be  made  a  party. 

9.  No  action  shall  be  defeated  by  the  non-joinder  or  misjoinder 
of  parties.  New  parties  may  be  added  and  parties  misjoined  may 
be  dropped,  by  order  of  the  court,  at  any  stage  of  the  cause,  as  the 
ends  of  justice  may  require. 

10.  No  change  in  parties,  made  by  order  of  court,  shall  impair 
any  previous  attachment  of  the  estate  or  body  of  any  person  re- 
maining a  defendant  in  the  action;  nor  impair  bonds  or  recogniz- 
ances of  any  person  remaining  a  party,  either  as  against  himself 
or  his  sureties;  nor  impair  receipts  to  an  officer  for  property 
attached;  and,  when  parties  are  changed,  the  court  may  order  new 
bonds  if  such  new  bonds  are  deemed  necessary.  Orders  of  court 
concerning  change  in  parties  may  be  upon  terms  at  the  discretion 
of  the  court.  J^ 


t 


y 


\  ,"j 


■\u.^''^^'%^^^- 


'4^6. 


'J^L«<-.*W-'V,«^ 


CHAPTER  VI. 

PLEADING. 

Section  I. 

Demurrers. 

[Form  of  General  Demurrer.]  * 

In  the Court  of  the  County  of ,  State  of.. 


\r 


C.  D.     I   And  the  defendant  by  X.  Y.,  his  attorney,  says  that  the 

ats.       y  said  declaration  [or  the  said count  of  the  said  dec- 

A.  B.     J    laration]  is  not  sufficient  in  law. 

X.  Y.,  Attorney  for  Defendant. 


^      MOORE  V.   HOBBS  and  BUSH. 

Supreme  Court  of  North  Carolina.     1878. 

[Reported  79  North  Carolina,  535.] 

Civil  Action  tried  at  Spring  Term,  1878,  of  Chowan  Superior 
Court,  before  Furches,  J. 
The  plaintiff  complains :  ■ — ■ 

1 .  That  the  defendants  are  indebted  to  him  in  the  sum  of  $488.70 
at  eight  per  cent  interest  per  annum  from  the  1st  day  of  December, 
1875. 

2.  That  no  part  of  said  debt  has  been  paid. 

3.  Therefore  the  plaintiff  demands  judgment  against  the  de- 
fendants (for  said  sum)  and  costs. 

The  defendants  demur :  — 

Because  the  facts  stated  in  said  complaint  are  insufficient  to 
constitute  a  cause  of  action,  in  that,  it  does  not  contain  a  plain  and 
concise  statement  of  the  facts  constituting  the  plaintiff's  cause  of 
action. 

^  The  following  is  a  form  of  joinder  in  demurrer  (now  generally  dispensed 
with): 

"  (Title  of  cause.) 

"  The  plaintiff  says  that  the  declaration  is  suflScient." 

For  the  more  complex  forms  formerly  in  use,  see  Tidd,  Forms,  4th  ed.,  270. 
—  Ed. 

171 


172  PLEADING 

The  Court  overruled  the  demurrer  and  offered  to  allow  the  de- 
fendants to  answer,  which  they  refused  to  do.  Thereupon  judg- 
ment was  rendered  upon  the  complaint  in  favor  of  the  plaintiff  for 
the  sum  demanded,  and  the  defendants  appealed, 

Reade,  J.i  "A  declaration  is  a  specification  in  a  methodical  and 
legal  form  of  the  circumstances  which  constitute  the  plaintiff's 
cause  of  action."  1  Chitty,  PL,  240.  Observe,  that  it  is  not  to 
state  that  there  is  a  cause  of  action,  but  the  "  circumstances  " 
which  constitute  the  cause  of  action,  "  The  general  requisites  or 
qualities  of  a  declaration  are,  .  .  .  Second,  that  it  contain  a  state- 
ment of  all  the  facts  necessary  in  point  of  law  to  sustain  the  action, 
and  no  more;  third,  that  these  circumstances  be  set  forth  with 
certainty  and  truth."  1  Chitty,  PL,  244.  Observe  again,  that 
"all  the  facts "  are  to  be  set  forth.  If  a  declaration  in  debt  be  upon 
simple  contract,  the  consideration  must  be  set  forth  with  the  other 
facts.  If  it  be  upon  a  specialty,  the  specialty  must  be  set  forth, 
and  that  imports  a  consideration.  Chitty,  PL,  362,  363.  The 
form  of  a  declaration  on  simple  contract  is  as  follows:  A.  B.,  the 
plaintiff  in  this  suit  .  .  .  complains  of  C.  D.,  the  defendant,  in  this 
suit  ...  for  that,  whereas  the  defendant  on  —  was  indebted  to 
the  plaintiff  in  $ —  for  the  price  and  value  of  goods  then  sold  and 
delivered  by  the  plaintiff  to  the  defendant  at  his  request,  &c.,  or 
for  the  price  and  value  of  work  then  done,  &c.,  or  for  monej'  lent, 
&c.  Arch.  N.  P.,  297.  The  form  of  a  declaration  on  specialty  is 
as  follows:  —  A.  B.,  the  plaintiff,  &c.,  complains,  &c.  Whereas, 
the  defendant,  &c,,  by  his  certain  writing  obligatory  sealed  with  his 
seal,  and  now  shown  to  the  Court,  &c.,  acknowledged  himself  to  be 
held  and  firmly  bound  unto  the  plaintiff  in  the  sum  of  $ — ,  &c. 
Arch.  N.  P.,  304.  A  defect  in  the  declaration  appearing  on  the 
face  of  it  could  be  taken  advantage  of  by  demurrer. 

It  is  plain  therefore  that  under  the  former  mode  of  pleading,  the 
declaration  in  this  case  is  fatally  defective.      It  states  a  cause  of 
action,  viz.,  indebtedness:   but  it  states  not  one  single  "  circum- 
stance "  or  "  fact  "  constituting  the  cause.      But  then  it  is  said, 
"  that  all  the  forms  of  pleading  heretofore  existing  are  abolished." 
C.  C.  P.,  §  91.     True,  but  still,  all  form  is  not  abolished,  for  theH 
same  C.  C.  P.,  §§  91,  92,  prescribes,  "  that  the  complaint  shall  con-    I 
tain  a  plain  and  concise  statement  of  the  facts  constituting  the  n^ii^ 
cause  of  action  without  unnecessary  repetition,  and  each  material  / 
allegation  shall  be  distinctly  numbered."  -"^ 

^  A  part  of  the  opinion  is  omitted.  —  Ed,       ,  y 


EICHLIN    V.    HOLLAND    TRAMWAY    COMPANY 


173 


Observe,  that  in  the  new,  as  in  the  old  form,  the  facts  constituting 
the  cause  of  action  must  be  stated,  with  this  addition  in  the  new 
over  the  old,  that  each  material  fact  shall  be  separately  numbered. 
The  object  of  the  declaration  in  the  old  forms  was  to  inform  the 
defendant  fully  as  to  the  facts,  so  that  he  might  make  his  defence 
both  by  the  proper  pleas  and  by  proofs,  and  that  the  jury  and  the 
Court  might  see  what  they  had  to  try  and  to  decide.  This  was  not 
a  matter  of  mere  form,  but  of  substance.  And  there  has  been  no 
relaxation  of  the  requisite  in  the  new  form,  and  no  alteration  from 
the  old,  except  to  require  the  greater  particularity  of  separately 
numbering  every  material  fact.  Why  require  them  to  be  num- 
bered if  they  are  not  required  to  be  stated  ? 

There  is  not  in  this  case  a  single  fact  stated  to  show  whether  the 
complaint  is  on  a  simple  contract  for  goods  sold  and  delivered,  or 
for  work  and  labor,  or  for  money  lent,  or  for  any  like  matter,  or    1 
whether  it  is  upon  a  bond  or  other  specialty,  or  whether  it  be  not     [ 
for  some  alleged  tort.  .  .  . 

Reversed  and  remanded;  the  plaintiff  to  pay,  and  the  defendants 
to  recover  costs  in  this  Court. 

Per  Curiam.  Judgment  accordingly.^ 


Z 


EICHLIN   et  ux.   v.   THE  HOLLAND   TRAMWAY 
COMPANY  et  al. 


Supreme  Court  of  New  Jersey.     1902. 
[Reported  68  New  Jersey  Law,  78.] 


h^ 


On  demurrer  to  narr.  \i  .<:■..<'.<•  ^  \  -^ 

Before  Gummere,  Chief  Justice,  and  Justices  Van  Syckel, 
Garrison  and  Garretson. 

Garrison,  J.  The  demurrer  filed  to  the  declaration  cannot  be 
sustained.  That  pleading  is,  it  is  true,  redundant  to  the  point  of 
embarrassing  the  issue,  but  inasmuch  as  it  sets  out  a  cause  of 
action  it  is  good  upon  general  demurrer.  The  gist  of  the  action 
shown  is  that  the  defendants  maintained  in  the  highway  things 
that  were  at  once  a  public  nuisance,  and  the  actual  cause  of  private 
injury  of  a  physical  nature  to  the  plaintiffs. 

^  Even  under  the  codes  in  many  jurisdictions,  a  complaint  alleging  simply 
an  indebtedness  for  goods  sold,  money  paid,  etc.,  analogous  to  a  declaration  at 
common  law  on  the  common  counts,  is  good.  Allen  v.  Patterson,  7  N.  Y.  476. 
But  see  Bowen  v.  Emmerson,  3  Ore.  452.  See  Ames,  Cases  on  Pleading,  ed.  of 
1905,  314;   Pomeroy,  Code  Remedies,  4th  ed.,  p.  584.  —  Ed.  ^ 


Si*^ 


^JP  JjU^ 


M««» 


/ 


This  answers  all  of  the  causes  assigned  for  demurrer  that  have 
any  substance. 
I   f ')  Judgment  upon  demurrer  is  given  for  the  plaintiffs.^ 


L 


HARTFORD   BANK  v.   GREEN,   THOMAS   &   CO. 
Supreme  Court  of  Iowa.      1861. 

[Reported  11  Iowa,  476.] 

Baldwin,  J.^  The  plaintiff  seeks  to  recover  of  Key,  Foster, 
et  al.,  as  makers,  and  of  Green,  Thomas  &  Co.,  as  indorsers,  of  a 
promissory  note  which  reads  as  follows : 

Burlington,  Dec.  5th,  1857. 
Twelve  months  after  date  we  promise  to  pay  to  the  order  of 
Green,   Thomas   &   Co.,   one   thousand   dollars   currency,   value 
received  with  ten  per  cent  interest  after  maturity. 

(Signed)  Charles  Foster, 

A.  Key,  and  others. 
(Indorsed)  Green,  Thomas  &  Co. 

In  order  to  show  such  diligence  against  the  makers  as  to  charge 
the  indorsers,  the  plaintiff  in  the  petition  alleges  that  the  defend- 
ants by  their  said  undertaking  agreed  to  pay  said  note  at  the  city  of 
Burlington,  at  the  maturity  thereof.  It  is  further  averred  that 
when  said  note  became  due,  "  it  was  duly  presented  for  payment 
at  the  Banking  House  of  Coolbaugh  &  Brooks,  in  said  city,  and 
notice  of  non-payment  given  to  the  makers  thereof  by  notices  de- 
posited in  the  post-office  of  said  city;  that  none  of  the  makers 
thereof  could  be  found  in  said  city  to  whom  said  note  could  be  pre- 
sented for  payment;  nor  had  any  of  said  makers  any  known  place 
of  residence  in  said  city,  diligent  inquiry  having  been  made  to 
ascertain  the  same."  Copies  of  the  note  and  the  protests  are 
annexed  to  and  made  a  part  of  the  petition. 

The  note  is  dated  at  Burlington,  but  is  not  made  payable  at  any 
particular  place.      The  defendants.  Green,  Thomas  &  Co.,  de- 

1  See  Tucker  v.  Randall,  2  Mass.  283. 

In  Bean  v.  Ayers,  67  Me.  482,  p.  488,  the  court  said:  "  A  demurrer  com- 
plains of  too  little  and  not  too  much  matter  in  a  declaration.  The  maxim 
utile  per  inutile  non  vitiatur  applies.  The  remedy  may  be  to  move  to  strike  out 
or  reduce  useless  and  redundant  allegations.  Upon  inspection,  the  court  may 
order  it  to  be  done."  —  Eu. 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


Lj^^WU^AvV^    %  VU  i^y^iM^^MJi    -^^ 


^M.**^*^^*"'-^ 


FIRST  NAT.  BANK    OF   ANOICA   V.    ST.    CROIX    BOOM    CORP.       175 

murred  to  this  petition,  alleging  as  a  cause  therefor,  a  variance 
between  the  note  described  in  the  petition  and  the  copy  annexed 
thereto.     This  being  sustained  the  plaintiff  appeals. 

It  is  claimed  by  the  appellants  that  as  the  petition  charges  that 
the  note  was  made  payable  at  the  city  of  Burlington,  the  defendants 
by  their  demurrer  admit  the  truth  of  the  allegation  thus  made,  and 
are  estopped  thereby  from  saying  that  the  note  was  not  properly 
presented  so  as  to  charge  the  indorsers. 

A  demurrer  only  admits  such  facts  to  be  true  as  are  well  pleaded. 
The  plaintiffs  in  order  to  recover  as  against  the  indorsers  must  show 
due  diligence  against  the  makers.  The  plaintiff  in  the  petition 
sets  forth  the  diligence  used,  and  the  note  being  made  payable  at 
no  particular  place  it  was  therefore  payable  at  the  residence  or 
place  of  business  of  the  makers.  The  diligence  used  becomes  a 
question  of  law,  and  if  all  the  diligence  used  by  the  holder  is  set  out 
in  the  petition  it  can  be  determined  upon  demurrer  as  well  as  other- 
wise whether  the  indorsers  are  liable  or  not.  The  copy  of  the  note 
contradicts  the  allegation  in  the  petition,  that  it  was  made  payable 
in  the  city  of  Burlington.  No  place  of  payment  is  designated  in 
the  note;  nor  is  it  alleged  that  there  was  any  subsequent  agreement 
between  the  parties  that  it  should  be  paid  in  said  city.  In  the 
absence  of  any  place  being  designated  where  the  same  is  payable, 
the  law  fixes  such  place  at  the  residence,  or  place  of  business,  of  the 
makers.  The  plaintiff  does  not  show  that  such  place  of  residence 
was  not  within  the  state  or  unknown  to  the  holder.  It  barely 
shows  that  it  could  not  be  found  in  the  city  of  Burlington,  and  that 
the  inquiry  was  confined  to  that  place  alone;  and  none  even  was 
made  of  the  indorsers  thereon  who  were  residents  of  said  city.  .  .  . 

Judgment  affirmed} 

I    FIRST  NATIONAL  BANK   OF  ANOKA  v.   ST.   CROIX 
BOOM   CORPORATION. 

Supreme  Court  of  Minnesota.     1889. 
[Reported  41  Minnesota,  141.] 

Appeal  by  defendant  from  an  order  of  the  municipal  court  of 
Stillwater,  overruling  its  demurrer  to  the  complaint  in  an  action  for 
the  conversion  of  17,000  feet  of  logs  of  the  value  of  $136. 

By  the  Court.  The  only  allegation  in  the  complaint  as  to  plain- 
tiff's right  to  or  interest  in  the  property  alleged  to  have  been  wrong- 

'  As  to  repugnancy  in  immaterial  allegations,  see  Stephen,  Pleading,  Will, 
ed.,  *414.  —  Ed.  . 


TtfV/  '     is^.cr^^r-i^'i'"^^^'"'^ 


176  ^PLEADING 

fully  converted  is  "  that  the  plaintiff,  in  the  regular  course  of 
business,  and  to  effect  the  payment  of  money  already  loaned  and  a 
debt  owing,  took  an  assignment  of  the  logs  marked  F.  D.  A.,  and 
of  the  logs  bearing  said  marks,  on  or  about  the  9th  of  February, 
1884,  and  then  and  thereby  became,  and  ever  since  has  continued 
to  be,  the  owner  of  all  the  logs  bearing  said  mark."     The  pleader 
might  have  contented  himself  with  a  general  allegation  of  owner- 
ship, but  he  has  attempted  to  set  out  all  the  facts  by  which  the 
plaintiff  became  the  owner,  and  then  the  general  result  following 
from  those  facts.     In  such  a  form  of  pleading  the  particular  facts 
alleged  will  control,  and,  if  they  do  not  sustain  the  result  reached, 
_the  pleading  is  bad.     Pinney  v.  Fridley,  9  Minn.  23,  (34.)     In  this 
case  there  are  no  facts  alleged  to  support  the  conclusion  that  the    , 
plaintiff  became  the  owner  of  the  logs.     It  is  not  alleged  by  whom"^  /. 
or  to  whom  the  money  was  loaned  or  the  debt  was  owing,  or  from      » 
whom  the  assignment  was  taken,  or  that  the  party  from  whom_J 
taken  had  any  interest  in  the  logs.     In  fact  it  would  appear  tha£_ 
the  pleader  had  studiously  avoided  alleging  any  materjai-iact^- 
The  complaint,  therefore,  did  not  state  a  cause  of  action. 

The  second  objection  to  the  complaint,  viz.,  that  it  does  not  state_ 
the  particular  acts  constituting  the  alleged  conversion,  is  not  welU 
tafei^^his  is  not  necessary.      A  general  allegation  that  the 
defendant  has  wrongfully  converted  the  property  is  sufficient;  but 
on  the  first  ground  the  demurrer  should  have  been  sustained. 

"         "~   Order  reversed} 

v^^'     LYDECKER  v.   ST.   PAUL  CITY  RAILWAY 
COMPANY. 

Supreme  Court  of  Minnesota.     1895. 
[Reported  61  Minnesota,  414.] 

Appeal  by  plaintiff  from  an  order  of  the  district  court  for  Ram- 
sey county,  Brill,  J.,  sustaining  a  demurrer  to  the  complaint. 
Affirmed. 

The  complaint  alleged  in  substance  that  plaintiff  was  a  passenger 
on  defendant's  electric  street  car;  that  on  approaching  the  cross 
street  where  he  wished  to  alight,  he  notified  the  conductor,  who 
signalled  the  motorman  to  stop;  that  in  consequence,  and  for  the 
purpose  of  stopping  on  the  farther  side  of  said  street,  the  motor- 

1  Baumler  v.  Narragansett  Brewing  Co.,  23  R.  I.  430,  50  Atl.  841,  ac- 
cord. —  Eu. 


2. 


3- 

LYDECKER   V.    ST.    PAUL    CITY   RAILWAY   COMPANY  177 

man  reduced  the  speed  of  the  car;  that  at  a  point  in  the  middle  of 
said  street  and  while  the  car  was  running  at  a  low  rate  of  speed,  to- 
wit,  at  a  speed  safe  for  a  passenger  to  step  from  the  same  and  not 
exceeding  two  miles  an  hour,  plaintiff  stepped  from  the  car  and 
started  to  pass  around  the  rear  end,  and  without  expecting  or 
looking  for  a  car  on  the  other  track,  by  reason  of  the  facts  above 
stated,  started  directly  to  cross  the  other  track;  that  as  he  was  in 
the  act  of  stepping  thereon  a  car  from  the  opposite  direction,  run- 
ning at  the  rate  of  six  miles  an  hour,  struck  and  injured  plaintiff; 
that  he  heard  no  bell  rung  from  said  car,  and  that  plaintiff  received 
said  injury  solely  by  reason  of  said  carelessness  and  negligence  of 
defendant. 

Mitchell,  J.  It  is  clear  from  the  most  casual  inspection  of  the 
complaint  that  it  does.notstate  a  cause  of.  action.,  No  act  of  negli- 
_gence_onj)art  of  defendant  is  allege^],.  It  is  alleged  that  the  car 
which  struck  the  plaintiff  was  running  at  the  rate  of  six  miles  an 
hour;  also  that  plaintiff  heard  no  bell  rung  on  the  car;  but  there  is 
no  allegation  that  six  miles  an  hour  was  an  improper  or  unlawful^ 
rate  of  speed,  or  that  no  bell  was  in  fact  rung. 

Counsel  for  defendant  ask  us  to  further  hold  that  the  complaint 
is  insufficient  because  it  affirmatively  appears  that  plaintiff  himself 
was  guilty  of  contributory  negligence.  We  cannot  so  hold.  Con- 
Jributory  negligence  is  a  matter  of  defense.  Hence  the  question  is 
not  whether  plaintiff  has  sufficiently  negatived  his  own  negligence, 
but  whether  it  conclusively  appears,  as  a  matter  of  law,  from  the 
facts  stated  in  his  complaint,  that  he  was  guilty  of  contributory 
jiegligence.  While  the  admissions  in  the  complaint  may  point  very 
strongly  to  negligence  on  part  of  the  plaintiff,  yet  we  do  not  think 
they  come  up  to  the  required  test.  The  question  may  become  a 
question  of  law  after  the  evidence  is  all  in,  but  it  is  not  such  on  the 
pleadings.  Order  affirmed} 

1  See  Town  of  Salem  v.  Goller,  76  Ind.  291. 

In  Chesapeake  &  Ohio  Ry.  Co.  v.  Swartz,  115  Va.  723,  p.  729,  80  S.  E.  568, 
the  court  said  "  Assumption  of  risk  and  contributory  negligence  are  matters  of 
defense,  and  the  fact  that  a  plaintiff  has  not  assumed  the  one  or  been  guilty  of 
the  other  need  not  be  averred.  It  is  nevertheless  true  that  where  a  declaration 
shows  that  the  plaintiff  has  assumed  the  risk,  or  been  guilty  of  contributory 
negligence,  it  will  be  held  bad  on  demurrer." 

In  jurisdictions  which  require  the  plaintiff  in  his  declaration  to  allege  his 
own  due  care,  a  failure  to  make  such  an  allegation  of  course  renders  the  dec- 
laration demurrable. 

A  declaration  which  discloses  on  its  face  the  defense  of  accord  and  satisfac- 
tion is  demurrable.  Paulson  v.  Ward  County,  23  N.  D.  601,  137  N.  W.  486, 
12  L.  R.  A.  (N.s.j,  ill.  —  Ed. 


^     L*-"*^ 


TROTTER  et  al. 


'(_-£f.^t'      *^— «-v*^> 


PLEADING 


V.   MUTUAL   RESERVE  FUND   LIFE 

ASS'N  et  al. 


^■ 


Supreme  Court  of  South  Dakota.     1897. 
[Reported  9  South  Dakota,  596.] 

Action  to  recover  on  a  policy  of  life  insurance.  Defendants' 
demurrer  to  the  complaint  was  overruled,  and  they  appeal. 

Afftryned. 

The  plaintiffs,  as  the  next  of  kin  of  the  insured,  bring  this  action, 
alleging  that  the  policy  sued  on  was  executed  by  the  defendant 
company,  that  the  other  defendant,  the  administrator  of  the 
insured,  released  the  defendant  company,  but  that  the  release  was 
procured  by  the  fraud  of  the  defendant  company  and  of  the  admin- 
istrator, and  that  the  administrator  refused  to  sue  the  defendant 
company.  The  defendant  company  demurs  to  the  complaint  on 
the  ground  that  it  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.^ 

Haney,  J.  .  .  .  The  release  is  a  matter  of  defense,  which  should 
not  have  been  mentioned  in  the  complaint.  The  allegations  relat- 
ing thereto  must  be  construed  together,  and,  if  stated  in  an  answer, 
would  certainly  constitute  no  bar  to  plaintiffs'  recovery.  They 
do  not  defeat  plaintiffs'  right  of  action.  They  are  inoperative  and 
useless,  and  should  be  disregarded  as  surplusage.  Phil.  Code  PL 
§  133.  Without  them  we  have  a  debt  due  the  estate  of  $5000, 
upon  which  the  administrator  refuses  to  bring  suit.  We  think  the 
complaint  states  a  cause  of  action,  and  that  the  order  overruling 
the  demurrer  should  be  affirmed.     It  is  so  ordered. 


/    WALL,  Admx.,  v.   THE   CHESAPEAKE  AND   OHIO 
'-  RAILROAD   COMPANY. 

Supreme  Court  of  Illinois.     1902. 

[Reported  200  Illinois,  66.] 

Wilkin,  J.^  This  suit  was  begun  by  plaintiff  in  error  to  recover 
damages  for  occasioning  the  death  of  her  intestate,  as  it  is  alleged, 
by  reason  of  the  negligence  of  the  defendant  in  error.  To  a  second 
amended  declaration  containing  twelve  counts,  filed  on  January  5, 

1  The  statement  of  facts  is  taken  from  the  opinion  and  is  abridged,  and  a 
part  of  the  opinion,  together  with  the  dissenting  opinion  of  Fuller,  J.,  is  omitted. 
—  Ed. 

^  A  part  of  the  opinion  is  omitted.  — ■  Ed. 


WALL   V.    CHESAPEAKE    AND    OHIO   RAILROAD    COMPANY        179 

1900,  the  court  sustained  a  general  demurrer,  and  plaintiff  having 
elected  to  stand  by  her  declaration  as  amended,  and  judgment  for 
costs  having  been  rendered  against  her,  she  appealed  to  the  Appel- 
late Court  for  the  First  District,  where  the  judgment  below  was 
affirmed,  and  the  case  is  brought  to  this  court  upon  writ  of  error. 

The  question  is  one  of  pleading.  Plaintiff  in  error  insists  that  the 
court  erred  in  sustaining  the  demurrer.  The  first  four  counts  of  the 
declaration  are  alike,  except  the  allegations  as  to  the  place  where 
the  injury  was  received,  and  they  allege,  in  substance,  that  the 
deceased,  on  May  24,  1896,  while  accompanying  a  train  carrying 
live  stock  and  passing  through  the  city  of  Cincinnati,  and  while  he 
was  riding  on  the  top  of  one  of  the  cars,  there  being  no  safe  place 
provided  by  the  company  for  him  to  ride,  was  struck  by  a  bridge  or 
viaduct  which  crossed  over  the  track  and  was  greatly  injured, 
resulting  in  his  death.  The  negligence_aY£n:fid_iSj  that  the  defend- 
ant failed  to  furnish  him  a  safe  place  in  which  to  ride  while  caring 
for  theTive'stoc'k,  ;ind  failed  to  wai-n  him  of  the  danger  he  incurred 
in  so  riding  in  the  place  provided  for  him  to  ride,  namely,  on  the 
top  oFthe  cars. 

From  the  face  of  the  declaration  it  appears  that  more  than  two 
years  elapsed  from  the  time  of  the  injury  to  the  bringing  of  the 
suit,  and  it  is  insisted  by  defendant  in  error  that  therefore  the  action 
could  not  be  sustained,  and  hence  the  defense  of  the  Statute  of 
Limitations  could  be  made  by  demurrer.  Mainly  on  this  ground 
it  is  insisted  the  trial  court  properly  sustained  the  demurrer.  In 
equity,  where  it  appears  on  the  face  of  the  bill  that  the  cause  of 
action  is  barred  by  laches  or  the  Statutes  of  Limitations,  the  defect 
may  be  reached  by  d^urrer  to  the  bill.     But  the  rule  is  otherwise 

in  common  la^^pleading.     The  defendant  cannot  demur  to  a  dec- 

laration  ,ev6h  where  it  appears  orTTts  face  that  the  limitation 

prescribed  by  the  statute  has  expired,  because  the  plaintiff  would 
tMis  be  deprived  of  the  opportunity  of  replying  and  pleading  any 
,  -'matter  which  would  prevent  the  bar  from  attaching.  The  defend- 
ant must  plead  the  statute  if  he  wishes  to  avail  himself  of  it. 
Gunton  v.  Hughes,  181  111.  132.  The  demurrer  to  the  first  four 
counts  was  therefore  improperly  sustained.  .  .  . 

Reversed  and  remanded.  ^ 

1  See  Ames,  Cases  on  Pleading,  ed.  of  1905,  pp.  128-132;  Pomeroy,  Code 
Remedies,  4th  ed.,  p.  818.  —  Ed. 


-    .tJ,^^ 


UAM'^^^^^^     i^iMa.  /u^L.^  vrCc^  fH^ ^:1a^  l&i^^  /-^-c^"^^. 


PLEADING 

A  y^^      CHAMBERS  v.   LATHROP. 
rfT   V  Supreme  Court  of  Iowa.     1841. 

[Reported  Morris,  102.] 

By  the  Court,  Mason,  Chief  Justice.^  The  declaration  in 
this  case  consisted  of  two  counts,  to  which  there  was  a  general 
demurrer.  This  being  overruled,  judgment  was  rendered  for  the 
plaintiff,  for  seventy-five  dollars,  and  costs,  without  the  interven- 
tion of  a  jury. 

It  is  assigned  for  error,  in  the  first  place,  that  the  demurrer  should 
have  been  sustained.     If  either  count  of  the  declaration  was  goodj_ 
the  demurrer  was  properly  overruled.      Although  neither  of  the'i 
counts  seem  drawn  up  with  much  professional  accuracy,  and  al- 
though the  first  is  doubtless  defective,  the  second  appears  sufRcienti  I 
in  substance  to  sustain  the  judgment  already  rendered.  ...  l^ 


GHIRADELLI  v.   GREENE,  County  Judge  of  Alameda 

County. 

Supreme  Court  of  California.     1880. 


V 


[Reported  56  California,  629.] 

Sharpstein,  J.'  An  action  was  originally  brought  in  a  Justice's 
Court  by  A.  C.  Dietz,  plaintiff,  against  Ghiradelli,  and  others, 
defendants,  to  recover  rent  alleged  to  be  due  upon  a  lease  in  writing. 

^  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 

2  See  Ames,  Cases  on  Pleading,  ed.  of  1905,  23;  1  Chitty,  Pleading,  16th 
Am.  ed.,  *696;  6  Encyc.  of  PI.  &  Pr.  301. 

The  same  result  has  been  reached  where  a  single  demurrer  has  been  inter- 
posed to  several  pleas.  Stacy  v.  Baker,  1  Scam.  (111.),  417;  Farmers  and 
Merchants'  Ins.  Co.  v.  Menz,  63  111.  116  (set-off);  Webb  v.  Bowless,  15  Ind. 
242;  Gregory  v.  Gregory,  89  Ind.  345  (set-off);  Hudson  v.  Inhabitants  of 
Winslow,  35  N.  J.  L.  437;   Mercein  v.  Smith,  2  Hill  (N.  Y.),  210  (set-off). 

A  demurrer  to  the  declaration  and  the  several  counts  therein  contained  is 
Teated  as  a  demurrer  to  each  count  and  will  be  sustained  as  to  any  defective 
counts  and  overruled  as  to  counts  which  are  not  defective.  May  v.  Western 
Union  Tel.  Co.,  112  Mass.  90. 

In  some  jurisdictions  the  demurrer  to  several  counts  or  pleas  is  taken  dis- 
tributively,  and  is  sustained  as  to  the  bad,  and  overruled  as  to  the  good, 
counts  or  pleas.  Gearhart  v.  Olmstead,  7  Dana  (Ky.),  441;  Tittle  v.  Bonner, 
53  Miss.  587.  See  South  Eastern  Ry.  Co.  v.  Railway  Commissioners,  6  Q.  B.  D. 
586.  —  Ed. 

3  A  part  of  the  opinion  is  omitted.  —  Ed. 


HUDSON,    &C.,    V.    SCOTTISH    UNION    &    NATIONAL   INS,    CO.     181 


i^ 


Judgment  was  rendered  against  Umlf,  and  they  appealed  to  the 
""Superior  Court,  which  affirmed  the' judgment  of  the  Justice's 
y  Court.  The  proceedings  of  the  Superior  Court  have  been  brought 
J  before  us  upon  a  writ  of  review,  sued  out  by  the  defendants. 
Y  The  defendants  demurred  to  the_complaint  in  the  Justice's 
5  Court,  on  the  ground  that  a  copy  of  it  had  not  been  served  upon  ■  -  >  -  -  """ 
i   jthem  with  the  summons.      Their  counsel  insists  that  this  consti-  <lotT  0^ 

^  tuted  a  gromid  of  demurrer,  because  the  Court  could  not  acquire 
,  J  jm'isdiction  of  the  defendants  without  the  service  of  a  copy  of  com- 
plaint, with  the  summons.  But  the  omission  would  not  appear 
upon  the  face  of  the  complaint,  which  was  filed  before  the  service 
or  even  issuance  of  the  summons,  and  therefore  the  objection  could 
not  be  taken  by  demurrer.  ^  Code  Civ.  Proc.  §  423.  The  demurrer—-  ^a^^'*'^ 
on  that  ground  was  properly  overruled,  and  the  answer  of  the  a  / 

defendants  to  the  complaint  was  a  voluntary  appearance  by  them,,,,^  QcM^  ^ 
which  was  equivalent  to  personal  service  of  the  summons  and       iSJajjJ^ 
copy  of  the  complaint  upon  them.      Code  Civ.  Proc.  §  416;  id.  _^  , 

§  1014.  .  .  .  ASirmed.     -^^(pX^^ 

Morrison,  C.  J.,  Ross,  J.,  McKinstry,  J.,  and  Myrick,  J.,      '     f%.^^i/>^>^ 


concurred.  f^^^tn^lu^^'^^^^**^    ^t..^.^.-<6>-*-t-C 

( l_     HUDSON,  &c.,  V.   SCOTTISH   UNION  &   NATIONAL  ^^  '    ^ 

INSURANCE  CO. 

Court  of  Appeals  of  Kentucky.     1901. 

[Reported  110  Kentucky,  722.] 

GuFFY,  J.^  The  plaintiffs  instituted  this  action  against  the 
defendant  in  the  Boyle  Circuit  Court,  seeking  to  recover  judgment 
against  it  for  the  sum  of  $1500.  The  claim  is  based  upon  a  policy 
of  insurance  issued  by  tTiedefendant  to  the  appellant,  Hudson, 
insuring  him  for  the  term  of  six  months  against  loss  or  damage  by 
fire  of  one  lot  of  hemp,  which  was  destroyed  by  fire,  and  was  of  the 
value  of  $10,000.  A  considerable  portion  of  the  stipulations  con- 
tained in  the  policy  are  set  out  in  the  petition,  showing  the  under- 
taking upon  the  part  of  defendant,  and  from  which  averment  it 
appears  that  plaintiffs  were  entitled  to  a  judgment  for  the  $1500, 
there  being  other  insurance  upon  the  property.  It  is  further 
alleged  in  the  petition  as  follows:  "  Said  contract  is  filed  herewith 
as  part  hereof,  and  made  a  part  hereof  as  fully  as  if  copied  herein." 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


182  PLEADING 

The  defendant  demurred  to  so  much  of  the  petition  as  claimed  a 
right  to  recover  more  than  $1250,  for  the  reason  that  said  petition 
and  exhibit  do  not  state  facts  sufficient  to  constitute  or  support  a 
cause  of  action  for  more  than  $1250.  The  court  sustained  the 
demurrer,  and  plaintiffs  failing  to  plead  further,  a  judgment  was 
rendered  in  their  favor  for  the  $1250,  and  the  petition  dismissed  in 
so  far  as  it  sought  to  recover  more  than  said  sum,  and  from  that 
judgment  this  appeal  is  prosecuted. 

It  is  insisted  for  appellants  that  the  demurrer  ought  to  have  been 
overruled,  for  the  reason  that,  so  far  as  the  petition  contained 
allegations  as  to  the  liability  of  defendant,  it  was  sufficient;  in 
other  words,  it  is  insisted  that  the  petition  showed  a  right  to  recover 
as  much  as  $1500.  The  real  question  involved  upon  the  demurrer 
is  whether  the  entire  policy  sued  on,  together  with  all  its  stipula- 
tions and  conditions,  must  be  considered  as  part  and  parcel  of  the 
petition  for  the  purpose  of  demurrer.  It  will  be  seen  that  as  part 
of  the  policy  there  is  a  stipulation  providing  that  in  no  event  shall 
defendant  be  liable  for  more  than  three-fourths  of  the  value  of  the 
property  when  destroyed,  and,  when  there  is  other  insurance,  that 
its  liability  shall  be  regulated  and  controlled  in  that  proportion. 

It  is  the  further  contention  of  appellants  that  under  section  120 
of  the  Civil  Code  of  Practice  they  were  required  to  file  the  policy 
because  their  cause  of  action  was  based  thereon,  but  the  fifing 
thereof  did  not  cause  every  stipulation  of  the  policy  to  become  part 
and  parcel  of  the  petition  for  the  purpose  of  sustaining  a  demurrer 
thereto,  and  therefore  the  demurrer  ought  to  have  been  overruled. 
And  it  is  further  contended  that,  if  the  three-fourths  clause  was 
available  as  a  defense,  it  could  only  be  made  so  by  answer.  It  is 
the  contention  of  appellee  that  the  entire  policy  constitutes  part 
and  parcel  of  the  petition,  and  must  all  be  considered  on  demurrer. 
Appellee  cites  Haney  v.  Tempest,  3  Mete.  97,  and  Wile  v.  Sweeney,  2 
Duv.  162.  Appellants  cite  Colfins  v.  Blackburn,  14  B.  Mon.  252, 
Hill  V.  Barrett,  Id.  83,  Yewell  v.  Bradshaw,  2  Duv.  575,  together 
with  some  decisions  of  other  coilrts  of  last  resort.  It  will  be  seen 
that  the  plaintiffs,  by  a  specific  statement,  made  the  policy  in 
question  part  of  the  petition  to  the  same  extent  as  if  it  had  been 
copied  therein.  After  a  careful  consideration  of  the  authorities, 
we  are  of  opinion  that  the  policy  in  this  case  constitutes  part  and 
parcel  of  the  petition,  and  was  properly  considered  in  considering 
the  demurrer.  It  may  be  true  that  the  mere  reference  to  and  the 
filing  of  a  paper  which  is  the  foundation  of  plaintiff's  claim  will  not 
be  considered  as  part  of  the  petition  in  order  that  the  same  may  be 


BARBER   V.    VINCENT  183 

held  to  be  sufficient,  it  being  a  well-settled  rule  of  law  that  the  aver- 
ments of  the  petition  must  show  a  right  to  recover,  and,  where  the 
contract  relied  on  is  made  part  of  the  petition  by  the  unequivocal 
averments  thereof,  it  constitutes  part  and  parcel  thereof;  and,  if 
the  making  of  the  same  a  part  of  the  petition  results  in  the  pleading 
being  contradictor^^  the  pleader  must  suffer  the  consequences,  for 
it  is  a  well-settled  rule  of  law  that  a  pleading  is  to  be  construed 
most  strongly  against  the  pleader.  .  .  . 

It  results  from  the  foregoing  that  the  demurrer  was  properly 
sustained.     The  judgment  appealed  from  is  therefore  affirmed.' 


^     BARBER  V.   VINCENT. 
Common  Pleas.     1680. 


[Reported  Freetnan,  531.] 

Indebitatus  assumpsit  for  a  horse  sold  for  20  /.  The  defendant 
pleaded  deins^age.    <^ — — -<C,a-«_  -^^  ( 

The  plaintiff  replied,  that  he  sold  him  the  horse  for  his  con- 
veniency  to  carry  him  about  his  necessary  affairs;    to  which  the  ^ 
defendant  demurred. 

And  the  sole  question  was,  whether  an  action  would  lie  against  an 
infant  for  money  for  a  horse  sold  ?     It  was  urged  on  the  defend-.--^         ^^ 
ant's  part,  that  an  infant  was  chargeable  only  for  necessaries,  as    (4^^^ 
meat,  drink,  clothes,  lodging,  and  education.      Cro.  Eliz.   175.  /-•'V*^    ^^ 
Cro.  Car.  Ayliff  v.  Archbold,  Latch,  169.  itlxAM^^ 

But  the  Court  were  of  a  contrary  opinion;  for  the  plaintiff 
ha\'ing  averred,  that  he  sold  him  the  horse  to  ride  about  upon  his 
necessar^^  occasions,  and  the  defendant  having  confessed  it  by  his 
demurrer,  it  must  now  be  taken  to  be  so :  if  the  defendant  had  trav-  a 

ersed,  then  the  jury  must  have  judged  of  it,  whether  it  were  i^y^l^  h 
necessary  or  convenient,  or  not  ?  and  so  likewise  of  the  price  of  the  r^y^Jjl  iL. 
horse,  whether  it  were  excessive,  or  not  ?  /)  f 

Jud'  pro  quer'  nisi.      ^^■^^*''*'*^ 

1  If  the  instrument  filed  with  the  pleading  is  not  incorporated  by  reference,   ^^y         ^^ 
it  is  generally  held  that  it  will  not  be  considered  on  a  demurrer  to  the  pleading.  ^^^j^fUt/t,'*-'*-^ 
Bogardus  v.  Trial,  1  Scam.  (111.),  63;  Metzger  v.  Credit  System  Co.,  59  N.  J.  L. 
340,  36  At  1.  661. 

\Mien  a  pleading  states  that  a  certain  instrument  is  thereto  anne>^ed  and 
made  a  part  thereof,  but  in  fact  it  was  not  annexed  thereto  nor  filed  therewith, 
the  court  will  not  treat  it  as  part  of  the  pleading,  on  a  demurrer  thereto. 
Lamorere  v.  Cox,  32  La.  Ann.  1045.  —  Ed. 


or. 


184  PLEADING 


SCHLICHT  V.   THE  STATE. 

Supreme  Court  of  Indiana.     1877. 

[Reported  56  Indiana,  173.] 

HowK,  J.  Appellant  was  indicted,  at  the  February  term,  1876. 
of  the  court  below,  for  an  alleged  violation  of  section  12,  of  "  An 
^-  J<  act  to  regulate  and  license  the  sale  of  spiritous,  vmous  and  malt  and 
\f  other  intoxicating  liquors,"  etc.,  approved  March  17th,  1875.  I 
R.  S.  1876,  p.  869.  The  indictment  charged  that  the  appellant,  on 
the  7th  day  of  August,  1875,  at  Ripley  county,  Indiana,  unlawfully 
sold  one  gill  of  spiritous  liquor,  commonly  called  whiskey,  to  one 
Job  Caster,  at  and  for  the  price  of  ten  cents,  —  he,  the  appellant, 

\"  not  then  and  there  having  a  hcense  so  to  do."  .  ,,.,■. a/'  ,■  ■ 
Appellant  moved  the  court  below  to  quasii^  said  indictment, 
which  motion  was  overruled,  and  appellant  excepted.  And, 
having  been  arraigned  on  said  indictment,  appellant's  plea  thereto 
was,  that  he  was  not  guilty.  The  cause  was  tried  by  a  jury,  in  the 
court  below,  and  a  verdict  was  returned,  finding  the  appellant 
guilty  as  charged  in  the  indictment,  and  assessing  his  fine  at  twenty 
dollars.  And  judgment  was  rendered  upon  the  verdict,  by  the 
court  below.  .  .  . 

In  this  court,  the  appellant  has  assigned  the  following  alleged 
errors  of  the  court  below,  to  wit : 

1st.     In  overruling  appellant's  motion  to  quash   the   indict- 
ment.^ .  .  . 

Appellant  also  insists  that  the  indictment  was  defective,  because 
"  there  is  no  averment  that  the  liquor  was  intoxicating."  The 
liquor  sold  is  described  in  the  indictment  as  "  spiritous  liquor, 
commonly  called  whiskey."  In  the  case  of  Carmon  v.  The  State, 
18  Ind.  450,  it  was  held,  that  "  the  court,  from  its  general  knowl- 
edge, can  judicially  say  that  whiskey  is  an  intoxicating  liquor; 
and  the  jury  might  so  find  upon  their  general  knowledge."  And 
the  case  cited  was  approved  and  followed  by  this  court,  in  the  late 
case  of  Eagan  v.  The  State,  53  Ind.  162.  From  these  authorities, 
our  conclusion  is,  that  it  was  sufficiently  shown  in  the  indictment 
^n  this  case,  that  the  liquor,  charged  to  have  been  unlawfully  sold 

])y  the  appellant,  was  intoxicating. 

• 

1  The  opinion  of  the  court  as  to  other  alleged  errors  is  omitted.  —  Ed. 

v 


i"  -/ 


\. 


CLOUGH   V.    GOGGINS  185 

We  hold,  therefore,  that  the  court  below  committed  no  error  in 
overruling  appellant's  motion  to  quash  the  indictment.  .  ,  . 

We  find  no  error  in  the  record. 

The  judgment  of  the  court  below  is  affirmed,  at  appellant's 
costs.^ 


CLOUGH  V.   GOGGINS 
Supreme  Court  of  Ioww.  '*^875 

[Reported  40  Iowa,  325.]  "     '1/ 

Action  upon  two  promissory  notes  made  by  defendant,  Oct. 
1,  1871,  and  payable  to  plaintiff.      A  demurrer  to  the  petition, 
on  the  ground  that  it  shows  the  notes  were  executed  on  Sunday^^_^,,^ 
was  overrulej^     Defendant  refusing  to  farther  plead,  a  judgment 
was  rendered  against  him,  from  which  he  appeals. 

Beck,  J.  I.  Contracts  made  in  this  State  upon  Sunday  are  ) 
void,  and  a  promissory  note  made  upon  that  day  will  not  support  1 
an  action.  Pike  v.  King,  16  Iowa,  50;  Sayre  v.  Wheeler,  31  lowa/"^ 
112. 

II.  Courts  will  judicially  take  notice  of  the  coincidence  of  days 
of  the  week  with  days  of  the  month,  as  what  days  fall  upon  Sunday. 
1  Greenleaf's  Ev.,  §  5;  1  Phillips'  Ev.  (Cowen  &  Hill's,  and  Ed- 
wards' notes),  p.  625. 

HI.  Matters  of  which  judicial  notice  is  taken  need  not  be  stated  >  ' 
in  a  pleading.  Code,  §  2722.  This  is  a  common  law  rule.  1  Chit.  /\ 
on  Pleading,  p.  245. 

The  court  will  take  judicial  notice  that  the  day  upon  which  the 
notes  in  suit  were  executed,  October  1,  1871,  was  Sunday.  In 
order  to  bring  that  fact  to  the  consideration  of  the  court,  it  was  not 
necessary  it  should  be  alleged  in  any  pleading  subsequent  to  the 
petition,  for  the  petition,  interpreted  by  the  judicial  knowledge  of 
the  court,  disclosed  the  fact.  The  petition  then,  as  it  contained 
matter  which  defeated  plaintiff's  claim,  was  rightly  assailed  by  the 
demurrer,  which  should  have  been  sustained.  The  judgment  of 
the  District  Court  must,  therefore,  be  Reversed} 

1  See  Thayer,  Preliminary  Treatise  on  Evidence,  Chap.  VII;  4  Wigmore, 
Evidence,  sees.  2565-2582.  In  most  of  the  cases  cited  the  question  arose  on 
the  evidence  and  not  on  the  pleadings.  —  Ed. 

*  The  court  may  take  judicial  notice  that  an  allegation  of  fact  in  the  plead- 
ings is  untrue.     Southern  Railway  Co.  v.  Covenia,  100  Ga.  46,  29  S.  E.  219.  — 


186 


PLEADING 


HANCOCK  NATIONAL  BANK  v.   ELLIS. 


•> 


L  A 


Supreme  Judicial  Court  of  Massachusetts.     1896. 
[Reported  166  Massachusetts,  414.] 

i J,  Allen,  J.^    This  case  comes  up  on  demurrer  to  the  plaintiff's 

l^j  s/-  ■'  declaration.     It  is  averred,  in  substance,  tliat  under  the  statute  of 

•-^      *  Kansas,  as  interpreted  by  the  decisions  of  the  Supreme  Court  of 

that  State,  the  Uability  of  the  defendant  as  a  stockholder  is  a  con- 
tractual liability,  and  arises  upon  the  contract  of  subscription  to  the 
capital  stock  made  by  the  defendant  in  becoming  a  stockholder, 
and  that  in  subscribing  to  said  stock  and  becoming  a  stockholder 
-  he  thereby  guaranteed  payment  to  the  creditors  of  an  amount 
equal  to  the  par  value  of  the  stock  held  and  owned  by  him,  which 
should  be  payable  to  the  judgment  creditors  of  said  corporation 
who  first  pursued  their  remedy  under  the  statute;  and  that  an 
action  to  enforce  said  liability  is  transitory,  and  may  be  brought  in 
any  court  of  general  jurisdiction  in  the  State  where  personal  ser- 
vice can  be  made  upon  the  stockholder. 

,__Thg  liability  of  the  stockholders  must  be  determined  according 
to  the  law  of  Kansas.  New  Haven  Horse  Nail  Co.  v.  Linden 
Spring  Co.,  142  Mass.  349,  353.  Halsey  v.  McLean,  12  Allen,  438, 
441.  Flash  v.  Conn.,  109  U.  S.  371.  We  now  have  a  case  where 
the  declaration,  as  we  interpret  it,  sets  forth  that  according  to 
the  law  of  Kansas  the  defendant  is  liable  to  a  judgment  creditor 
of  the  corporation  as  upon  a  contract,  which  is  suable  anywhere. 
The  facts  alleged  in  this  respect  are  different  from  those  in  any  case 
heretofore  presented  to  this  court  (see  Bank  of  North  America  v. 
Rindge,  154  Mass.  203),  and  the  alleged  liability  of  stockholders  is 
V  of  a  different  character  from  that  which  exists  in  this  Common- 
wealth. We  are,  however,  to  adopt  the  construction  which  is  given 
in  Kansas  to  the  liability  and  undertaking  of  stockholders  in  Kansas 
corporations,  and  to  give  force  and  effect  to  the  same  as  there 
established.  Accordingly,  jurisdiction  exists  here  to  enforce  the 
liability  like  other  debts,  if  the  law  of  Kansas  is  accurately  stated 
in  the  declaration.  On  the  demurrer  we  can  only  look  at  the 
averments  of  the  declaration.  We  cannot  take  judicial  notice  of 
the  statutes  of  Kansas,  or  of  their  interpretation  by  the  courts  of 
that  State.  At  this  stage,  we  simply  look  at  the  case  as  the  plain- 
tiff presents  it.       \ 

\   I    JK      /  V  *  The  stfitcnaenVof  facts  is  omitted.  —  Ed. 

„  1^  y ....     ■ 


HAITON    f.    JEFFREYS  187 


The  fact  that  the  corporation  is  in  the  hands  of  receivers  is 
immaterial,  because,  under  the  averments  of  the  declaration,  the 
liability  of  the  defendant  is  directly  to  creditors,  and  the  receivers 
could  not  enforce  it.  Barre  National  Bank  v.  Hingham  Manuf. 
Co.,  127  Mass.  563,  567.  Cook,  Stock  &  Stockholders,  §  218,  and 
cases  there  cited. 

The  averments  are  sufficient  to  set  forth  that  the  defendant  is 
such  a  stockholder  as  by  the  law  of  Kansas  would  be  liable  to  the 
plaintiff. 

Judgment  reversed.     Demurrer  overruled} 

^.,.  „...vw-  w--^  Ip-^  "^-   M^ct^^'^ 

HAITON  and  others.  Assignees,  y.   JEFFREYS.    '^^''^         /*?3 
King's  Bench.     1715. 
[Reported  10  Modern  Reports,  280.] 

The  Court  was  moved  for  leave  to  plead  a  plea,  and  demur  to  the 
declaration,  at  the  same  time,  upon  the  4  Anne,  c.  16,  §  1,  the 
words  of  which  are,  "  That  it  shall  be  lawful  for  any  defendant, 
or  tenant  in  any  action  or  suit,  or  for  any  plaintiff  in  replevin,  in 
any  court  of  record,  with  the  leave  of  the  same  court,  to  plead  as 
many  several  matters  thereto,  as  he  shall  think  necessary  for  his 
defence:  provided  nevertheless,  that  if  any  such  matter  shall,  upon 
a  demurrer  joined,  be  judged  insufficient,  costs,  &c." 

The  Court.  The  words  of  the  act  of  parliament  are,  "  that  it 
shall  be  lawful  to  plead  as  many  several  matters,  &c."  Now  a 
demurrer  is  so  far  from  being  a  plea,  that  it  is  an  excuse  for  not 
pleading.  Here  you  plead,  and  at  the  same  time  pray  that  you 
may  not  plead.  The  word  "  matter,"  imports  a  possibility  that 
the  other  party  may  demur  to  it:  but  there  can  be  no  demurrer 
upon  a  demurrer.     This  was  never  attempted  before.^ 

1  Miller  v.  .AJdrich,  202  Mass.  109,  88  X.  E.  441;  Sultan  of  Turkey  v. 
Tir>-akian,  162  N.  Y.  App.  Div.  613,  147  N.  Y.  Supp.  978,  accord. 

As  to  how  far  the  federal  courts  will  take  judicial  notice  of  the  law  of  the 
several  states,  see  Hanley  v.  Donoghue,  116  U.  S.  1,  29  L.  ed.  535,  6  S.  Ct. 
242.  —  Ed. 

2  See  6  Encyc.  of  PI.  and  Pr.  382. 
In  some  jurisdictions  the  rule  has  been  changed  by  statute.     Common  Law 

Procedure  Act,  1852,  sec.  80;    Hobson  v.  Satterlee,  163  Mass.  402,  40  N.  E. 
189. 

A  party  may  of  course  demur  to  one  or  more  separate  causes  of  action  or 
defenses  and  answer  as  to  the  residue.  —  Ed. 


188  PLEADING 


^ 


THE  AUBURN  AND  OWASCO  CANAL  CO.  v.  LEITCH. 

Supreme  Court  of  New  York.     1847. 
[Reported  4  Denio,  65.] 

Demurrer  to  a  replication.  The  declaration  was  in  assumpsit 
for  the  recovery  of  certain  instalments  due  upon  shares  of  the 
capital  stock  of  the  plaintiff's  corporation,  subscribed  for  by  the 
defendant.  Pleas,  1.  Non-assumpsit.  2.  Nut  tiel  corporation. 
Replication  to  the  second  plea,  setting  out  the  act  incorporating 
the  plaintiff,  together  with  certain  acts  amending  and  continuing 
that  act.  The  defendant  demurred  to  the  replication,  and  the 
plaintiff  joined  in  demurrer. 

By  the  Court,  Bronson,  C.  J.^  The  defendant  insists  that  the 
declaration  is  bad  on  general  demurrer.  [The  chief  justice  then 
examined  the  pleadings,  and  came  to  the  conclusion  that  the 
declaration  was  substantially  defective;  and  then  proceeded  as 
follows :]  But  it  is  said,  that  as  the  defendant  pleaded  non  assumpsit 
as  well  as  nul  tiel  corporation,  he  cannot  upon  this  demurrer  go 
back,  and  attack  the  declaration;  and  several  cases  have  been 
cited  to  sustain  that  position.  But  it  will  be  found  on  examination 
that  the  point  has  never  been  directly  and  necessarily  adjudged.  .  .  . 

It  is  quite  clear  that  the  defendant  cannot  both  plead  and  demur- 
to  the  same  count.  And  it  is  equally  clear,  that  at  the  common 
law,  he  could  not  have  two  pleas  to  the  same  count.  Indeed  the 
two  things,  though  stated  in  different  words,  are  only  parts  of  one 
common  law  rule;  to  wit,  that  the  defendant  cannot  make  two 
answers  to  the  same  pleading.  The  statute  of  4  and  5  Anne,  c.  16, 
was  made  to  remedy  this  inconvenience;  and  it  allowed  the  defend- 
ant, with  the  leave  of  the  court,  to  plead  as  many  several  matters  as 
he  should  think  necessary  for  his  defence.  With  us,  leave  of  the 
court  is  no  longer  necessary.  2  R.  S.  352,  §  9.  The  statute  does 
not  say  that  the  defendant  may  both  plead  and  demur;  and  con- 
sequently he  cannot  make  two  such  answers.  But  he  may  plead 
two  or  more  pleas;  some  of  which  may  terminate  in  issues  of  fact,  to 
be  tried  by  a  jury;  while  others  may  result  in  issues  of  law,  to  be 
determined  by  the  court.  And  whenever  we  come  to  a  demurrer, 
whether  it  be  to  the  plea,  replication,  rejoinder,  or  still  further 
onward,  the  rule  is  to  give  judgment  against  the  party  who  com- 
mitted the  first  fault  in  pleading,  if  the  fault  be  such  as  would  make 
the  pleading  bad  on  general  demurrer.      This  rule  has  always 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


JOHNSON  V.    PENSACOLA  AND  PERDIDO  R.  R.  CO.      189 

prevailed.  It  was  the  rule  prior  to  the  statute  of  Anne;  and  to  say 
that  the  defendant,  because  he  pleads  two  pleas,  one  of  which 
results  in  a  demui-rer,  cannot  go  back  and  attack  the  declaration, 
would  be  to  deprive  him  of  a  portion  of  the  privilege  which  the 
legislatiu-e  intended  to  confer.  He  cannot  plead  and  demur  at  the 
same  time,  because  the  common  law  forbids  it;  and  the  statute 
does  not  allow  it.  But  he  may  plead  two  pleas;  and  he  takes  the 
right  with  all  its  legitimate  consequences;  one  of  which  is,  that 
whenever  there  comes  a  demurrer  upon  either  of  the  two  lines  of 
pleading,  he  may  run  back  upon  that  line  to  see  which  party  com-^ 
mitted  the  first  fault;  and  against  that  party  judgment  will  be 
rendered.  Aside  from  the  dicta  in  question,  there  is  not  a  shadow 
of  authority,  either  here  or  in  England,  for  a  different  doctrine.  .  .  . 

Judgment  for  the  defendant} 


'fA 


/ 


JOHNSON  V.  THE   PENSACOLA  AND   PERDIDO 
RAILROAD   COMPANY. 

Supreme  Court  of  Florida.     1878. 
[Reported  16  Florida,  623.] 

Westcott,  J. 2  This  ^\Tit  of  error  is  prosecuted  here  by  James  B. 
Johnson,  the  plaintiff  in  the  Circuit  Court.  What  he  questions 
first,  as  a  matter  of  practice,  is  the  correctness  of  the  ruling  of  the 
Circuit  Court  upon  the  demurrer  to  defendant's  pleas.  The 
defendant  before  filing  its  pleas  had  demurred  to  the  declaration, 
and  the  court  had  overruled  the  demurrer.  To  the  pleas  then 
filed  the  plaintiff  demurred,  and  the  first  question  in  the  case  to  be 
determined  is,  does  this  demurrer  reach  the  declaration,  or,  the 
declaration  having  been  sustained  by  the  court  in  overruling 
defendant's  demurrer  thereto,  does  this  action  of  the  court  fix  the 
law  of  the  case,  and,  upon  demurrer  to  the  plea,  prevent  this  court 
or  the  Circuit  Court  from  going  back  to  the  declaration  ? 

The  plaintiff  in  error  here  maintains  that  it  does,  and  insists 
that  the  only  question  is,  admitting  the  declaration  to  be  good,  is 

^  Henderson  v.  Hale,  19  Ala.  154;  Gould  v.  Stej^er,  75  Ind.  50;  Dorsey  v. 
State,  4  Gill  &  J.  (Md.),  471,  accord. 

Supreme  Lodge  K.  of  P.  v.  McLennan,  171  111.  417,  49  N.  E.  430;  Baldwin  v. 
City  of  Aberdeen,  23  S.  Dak.  636,  123  N.  W.  80,  26  L.  R.  A.  (n.s.),  116, 
contra.  —  Ed. 

*  The  statferaent  of  facts  and  a  part  of  the  opinion  in  which  the  declaration 
is  examined  and  held  insufficient  are  omitted.  —  Ed. 


190  PLEADING 

this  a  good  plea  ?  The  only  case  brought  to  our  attention  in  this 
connection  is  the  case  of  EUison,  Adm'r,  v.  Allen,  8  Fla.,  209. 
There  this  court  held  that  a  defendant  in  the  Circuit  Court,  and 
appellant  here,  could  not  avail  himself  of  his  demurrer,  abandoned 
in  that  court,  by  his  pleading  over  when  it  was  overruled. 

We  will  state  the  principles  of  law  controlling  this  subject  as 
applicable  to  that  case,  as  well  as  to  this.  Upon  the  interposition 
of  the  demurrer  of  the  defendant  to  plaintiff's  declaration,  going  as 
it  chd  to  the  sufficiency  in  law  of  the  matter  stated  as  a  foundation 
for  the  action,  the  judgment  consequent  upon  the  overruling  the 
demurrer  was  a  judgment  quod  recuperet.  This  was  the  strict  com- 
mon law  rule.  Tidd's  Prac,  657.  This  rule  has  been  varied  in 
most  of  the  State  courts,  as  well  as  in  the  courts  of  the  United 
States,  The  general  rule  is  now  that  even  after  the  court  has 
announced  its  judgment  to  be  that  thedecrafation  is  good  in  law, 
the  defendant  is  permitted  to  withdraw  his.  demurrer,  to  plead,  de 
nmo^^  and  thus  avoid  a  final  judgment  against  him.  In  this  State 
the  statute  provides  (act  of  Nov.  23,  1828,  Thomp.  Dig.,  331), 
that  "  no  demurrer,  either  at  law  or  in  equity,  shall  be  considered 
as  an  admission  of  the  facts  set  forth  in  the  pleadings  demurred  to, 
so  as  to  debar  the  person  demurring  from  any  substantial  claim  or 
defence  which  he  might  have  urged  if  said  demurrer  had  not  been 
filed,"  and  the  constant  practice  upon  the  circuit  is,  upon  overruling 
a  demurrer  to  a  declaration,  to  permit  the  defendant  to  plead  to  the 
merits.  When,  however,  he  pleads  to  the  merits  he  must  withdraw 
his  demurrer,  and  the  consequent  final  judgment  quod  recuperet, 
which  is  the  only  known  form  of  judgment  which  can  follow  over- 
ruling a  general  demurrer  to  a  declaration,  is  not  entered.  This  is 
the  reason  why  a  defendant,  if  he  pleads  over  after  judgment 
against  him  upon  his  demurrer  to  the  declaration,  is  held  to  waive 
his  demurrer.  In  such  cases  courts  of  error,  controlled  by  the 
common  law  practice,  treat  the  record  as  not  containing  any  such 
judgment  or  demurrer  —  treat  the  case  as  if  no  demurrer  had  been 
filed.  This,  in  view  of  our  statute,  is  eminently  just  and  proper. 
The  statute  takes  from  the  plaintiff,  so  far  as  defendant's  pleading 
is  concerned,  all  advantage  of  the  judgment  in  his  favor  upon  de- 
fendant's demurrer  to  his  declaration;  and  as  to  the  defendant,  it 
very  properly  provides  that  his  case  shall  stand  as  "if  said  de- 
murrer had  not  been  filed."  This  is  the  reason  why  the  appellant 
in  the  case  referred  to  by  the  plaintiff  in  error  here  (8  Fla.,  209), 
was  not  permitted  to  assign  for  error  the  judgment  of  the  court 
upon  his  demurrer.     This  court  in  that  case  says,  if  he  desired  to 


JOHNSON/jy.    PENSACOLA    AND    PERDIDO    R.  R.    CO.  191 


have  that  ruling  reversed  he  should  have  refused  to  go  to  the 
country,  and  have  permitted  the  judgment  on  the  demurrer  to 
stand.  The  only  authority  cited  by  this  court  in  that  case  for  the 
view  there  announced  was  the  case  of  the  United  States  v.  Boyd,  5 
How.,  51.  There  the  Supreme  Court  of  the  United  States  says, 
"  The  withdrawal  of  the  demurrer  and  going  to  issue  upon  the 
pleading  operated  as  a  waiver  of  the  judgment.  If  the  defendants 
had  intended  to  have  a  review  of  that  judgment  on  a  WTit  of  error, 
they  should  have  refused  to  amend  the  pleadings  and  have  permit- 
ted the  judgment  on  the  demurrer  to  stand."  The  Supreme  Court 
of  the  United  States  is  somewhat  more  explicit  in  the  language 
used  in  the  later  cases  covering  this  subject.  In  the  United  States 
V.  Vigil,  10  Wall.,  423,  that  court  says,  "  The  filing  of  a  plea  to  the 
merits  after  the  demurrer  was  overruled,  operated  as  a  waiver  of  the 
demurrer.  The  pleading  was  thus  abandoned  and  ceased  thence- 
forth to  be  a  part  of  the  record."  In  Young  v.  Martin,  8  Wall.,  357, 
the  same  court,  in  speaking  of  this  subject  says,  "  They  thus 
abandoned  their  demurrer,  and  it  ceased  to  be  a  part  of  the 
record." 

With  this  explanation  and  statement  of  the  true  grounds  of  this 
action  of  the  court  and  of  the  Supreme  Court  of  the  United  States, 
in  cases  where  the  plaintiff  in  error  seeks  to  question  a  judgment  of 
the  court  of  original  jurisdiction  overruling  a  demurrer  after  he  has 
plead  over,  we  ask  what  is  the  result  of  its  application  here  ?  The 
rule  being  that  such  a  demurrer  and  judgment  is,  in  contemplation 
of  law,  no  part  of  the  record,  or  if  it  is  strictly  a  part  of  the  record 
it  is  waived,  then  the  general  rule  that  upon  plaintiff's  demurrer  to 
the  defendant's  pleas,  the  sufficiency  of  the  declaration  is  brought 
in  question  must  operate,  for  the  simple  reason  that  there  is  nothing 
to  prevent  its  operation.  The  record  stands  as  if  originally  there 
was  nothing  but  the  declaration,  the  plea  and  the  demurrer  thereto. 
Why  should  the  defendant  be  held  to  have  waived  his  demurrer, 
and  the  plaintiff  be  given  all  advantage  of  it  in  the  same  manner 
as  if  not  waived  ?  How  can  it  be  held  that  a  demurrer  can  be  con- 
sidered as  ^^dthdra\\Tl  for  one  party  and  not  for  the  other  ?  The 
law  has  no  such  anomalies.  If  it  is  withdrawn  it  is  withdrawn  for 
all  parties,  and  that  is  the  end  of  it. 

This,  our  conclusion,  reasoning  from  elementary  principles  of 
pleading,  is  sustained,  wthout  exception,  by  the  cases  which  we 
have  been  able  to  find  covering  the  precise  point.  In  Cummings  v. 
Gray,  4  Stew.  &  Port.,  397,  the  Supreme  Court  of  Alabama  says, 
"  That  where  a  demurrer  to  a  declaration  containing  no  substantial 


192  PLEADING 

cause  of  action  has  been  overruled  and  the  defendant  pleads  over, 
a  second  demurrer  may  well  be  extended  back  to  the  declaration." 
To  the  same  effect  are  the  cases  reported  in  13  Ala.,  265,  and  13 
Ala.,  490-500,  and  the  like  rule  is  announced  by  the  Supreme 
Court  of  the  United  States  in  7  Wall.,  93.  Our  conclusion  as  to  this 
point  is  that  the  demurrer  to  the  plea  reached  the  declaration,  not- 
Avithstanding  a  previous  demurrer  to  the  declaration  overruled,  and 
that  upon  the  argument  of  the  demurrer  to  the  plea,  the  record  was 
to  be  treated  in  just  the  same  manner  as  it  should  have  been  if 
no  demurrer  to  the  declaration  was  ever  filed.  .  .  . 

Our  conclusion  is  that  the  declaration  does  not  contain  a  legal 
cause  of  action,  and  that  the  demurrer  to  the  pleas  of  the  defendant 
reached  the  declaration,  notwithstanding  a  previous  demurrer  to 
the  declaration  by  the  defendant  had  been  overruled.  The  judg- 
ment must  be  affirmed.^ 


BROOKE  V.   BROOKE  and  Others. 
King's  Bench.     1664. 
[Reported  1  Siderfin,  184.] « 


^ 


In  trespass  for  taking  a  hook,  etc.,  the  defendant  pleaded  that  he 
had  a  way  to  such  a  wood  across  the  land  of  the  plaintiff,  that  he 
was  passing  there,  and  that  the  plaintiff  endeavored  to  cut  his  harness 
and  to  wound  him  with  the  said  hook,  wherefore  he  took  the  said 
hook  out  of  the  hands  of  the  plaintiff,  and  delivered  it  to  the  con- 
stable, etc.  Issue  upon  the  way,  and  verdict  for  the  plaintiff. 
And  it  was  moved,  in  arrest  of  judgment,  that  the  plaintiff  had  not 
»,^  shoAvn  in  his  declaration  that  the  hook  was  in  his  possession.  And 
it  was  agreed  by  the  court,  that  if  the  defendant  had  pleaded  Not 
guilty,  the  judgment  should  be  arrested,  because  the  plaintiff  does 
V-  not  say  in  his  declaration  hamum  suum,  nor  show  that  it  was  in  his 

'^"  possession.  But  in  this  case  the  court  were  of  opinion  that  the 
defendant,  by  his  special  plea,  made  the  declaration  good,  for 
the  defendant  pleads  that  he  took  the  hook  extra  'possessionem  of 
the  plaintiff,  wherefore  the  plaintiff  may  well  maintain  this  action 
on  his  possession  without  any  property. 

1  City  of  Chicago  v.  The  People,  210  111.  84,  71  N.  E.  816,  contra.  —  Ed. 

2  See  Ames,  Cases  on  Pleading,  ed.  of  1905,  63.  —  Ed. 


LYCOMING   FIRE   INS.    CO.    V.   MEDAD    WRIGHT    &    SON  193 


LYCOMING    FIRE    INSURANCE    COMPANY   v.  MEDAD 

WRIGHT  &   SON.  ^  J      ' 

Supreme  Court  of  Vermont.     1883.  \l 

[Reported  55  Vermont,  526.  ] 

General  and  special  assumpsit  to  recover  assessments  on  pre-^___^ 
mium  notes.      Pleas,  general  issue  and  four  special  pleas  in  bar. 
Heard  on  demurrer  to  the  special  pleas,   March   Term,    1883, 
Redfield,  J.,  presiding.     Demurrer  overruled. 

RoYCE,  Ch.  J.^  .  .  .  The  declaration  is  fatally  defective  in  not 
alleging  that  the  plaintiff  company  had  obtained  a  license  which 
was  in  force,  to  transact  insurance  business  at  the  time  the  contract 
was  entered  into,  unless  the  defect  is  cured  by  the  last  plea.  The 
language  which  it  is  claimed  has  that  effect  is  that,  "  before  obtain- 
ing or  receiving  a  license  from  the  insurance  commissioners  au- 
thorizing said  plaintiff  to  transact  insurance  business  in  this  State 
and  before  entering  into  the  contract  declared  upon,"  etc.  This, 
it  is  claimed,  is  to  be  construed  as  an  admission  that  such  a  license 
had  been  obtained.  Treating  it  as  such  an  admission,  it  does  not 
cure  the  defect  complained  of.  It  was  not  enough  to  allege  that 
the  plaintiff  company  had  obtained  a  license;  it  should  have  been 
alleged  that  it  had  a  license  which  was  in  force  at  the  time  the  con-  — 
tract  was  entered  into.  In  Ralston  v.  Strong,  1  D.  Chip.  287, 
it  is  said  by  Judge  Chipman  that  a  plea  may,  by  a  direct  admission 
of  facts  omitted  or  obscurely  expressed,  aid  the  declaration.  That 
we  think  expresses  the  true  rule;  and  applying  it  to  the  language 
here  used,  there  was  no  such  admission  made  that  a  license  had 
been  obtained  at  any  time,  so  that  the  defect  in  the  declaration  was 
not  cured  by  the  ple^,,-*  .  . 

The  pleas  demurred  to  are  sufficient,  but  the  judgment  over- 
ruling the  demurrers  is  reversed  yro  forma,  and  causes  remanded 
in  order  that  the  plaintiffs  may  apply  for  leave  to  amend  their 
declarations.  ^^^' 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 

2  See  1  Chitty,  Pleading,  16th  Am.  ed.,  *  703;  6  Encyc.  of  PI.  &  Pr.  372. 
__  The  declaration  may  be  aided  by  allegations  in  a  plea  filed  after  the  statute 
of  limitations  has  run  on  the  plaintiff's  cause  of  action.  Vickery  v.  New  Lon- 
don Northern  R.  R.  Co.,  87  Conn.  634,  89  Atl.  277. 

A  plea  may  be  aided  by  an  admission  in  the  replication.  United  States  v. 
Morris,  10  Wheat.  (U.  S.),  246. 

As  to  aider  of  a  declaration  b\'  allegations  in  the  replication,  see  Marine 


i. 


J' 


194  PLEADING 


MARSH,  Executor  of  QUINLAIN,   v.   BULTEEL. 


.0  King's  Bench.     1882. 


[Reported  5  Barnewall  &  Alderson,  507.] 

Covenant  upon  a  deed,  whereby  the  parties  agreed  to  submit 
certain  differences  to  the  award  of  arbitrators.  The  first  count  of 
the  declaration  stated  the  defendant's  covenant  to  obey,  abide  by, 
and  perform  the  award,  and  that  he  would  not  by  affected  delay,  or 
otherwise  hinder,  or  prevent  the  arbitrators  from  making  their 
award.  It  then  stated,  that  the  arbitrators  duly  made  their 
award,  and  that  they  thereby  directed,  that  the  defendant  should 
pay  to  the  plaintiff  certain  sums  therein  mentioned.  The  breaches 
assigned  were,  that  the  defendant  did  not  pay  those  sums  of  money. 
The  second  count  was  founded  upon  the  same  deed,  and  assigned 
as  a  breach,  that  the  defendant  did,  before  the  making  of  the  award, 
hinder  and  prevent  the  arbitrators  from  making  their  award  in 
this,  that  the  defendant,  by  a  certain  deed  in  writing,  signed  and 
sealed  with  the  seal  of  the  defendant,  after  reciting  as  therein  was 
recited,  did  revoke,  abrogate,  and  put  to  an  end  to,  and  determine 
all  and  every  arbitration  or  arbitrations,  reference  or  references  to 
arbitration,  deed  or  deeds  of  submission,  agreement  or  agreements, 
contract  or  contracts  to  refer  to  the  arbitration  or  award  of  the  said 
arbitrators,  whereby  they,  the  said  arbitrators,  were  hindered  and 

Trust  Co.  V.  St.  James  A.  M.  E.  Church,  85  N.  J.  L.  272,  88  Atl.  1075.  But 
see  Kearney  County  Bank  v.  Zimmerman,  5  Neb.  (Unof.),  556. 

In  Cummins  v.  Gray,  4  Stew.  &  P.  (Ala.),  397,  a  demurrer  to  a  defective 
declaration  was  overruled  and  the  defendant  pleaded  over.  The  plaintiff  de- 
murred to  the  plea.  The  court  held  that  the  demurrer  reached  back  to  the 
declaration,  which  was  held  to  be  bad  in  substance,  and  judgment  was  given 
for  the  defendant.  The  Supreme  Court  affirmed  the  judgment  saying:  "Many 
defects  in  a  declaration  may  be  cured,  by  pleading  to  the  merits,  either  before 
or  after  a  demurrer.  So  far  as  this  effect  has  been  produced,  the  plaintiff  is 
entitled  to  the  benefit  of  it,  whenever  the  question  subsequently  recurs,  whether 
on  a  second  demurrer,  on  a  motion  in  arrest  of  judgment,  or  in  error.  Where, 
however,  the  declaration  does  not  contain  a  substantial  cause  of  action,  the 
insufficiencies  cannot  be  cured  by  a  plea  to  the  merits." 

Pleading  Vitiated  by  Subsequent  Pleading.  In  Keay  v.  Goodwin,  16 
Mass.  1,  3,  the  court  said  "  Although  on  demurrer  the  court  will  look  for  the 
first  fault,  if  it  be  matter  of  substance;  yet  it  is  also  the  duty  of  the  court  to 
look  at  the  whole  record.  If  to  a  defective  plea  the  plaintiff  replies,  and  shews 
that  he  had  no  cause  of  action,  he  is  not  entitled  to  judgment;  although  the 
declaration  be  good,  and  the  defendant  was  guilty  of  the  first  fault  in  plead- 
ing." —  Ed. 


MARSH    V.    BULTEEL  195 

prevented  from  making  their  said  award,  and  whereby  the  said 
plaintiff  lost,  and  was  deprived  of  the  ]:)enefit  that  he  would  other- 
wise have  derived  from  an  award.  The  defendant  pleaded  to  the 
first  count,  that  before  the  arbitrators  made  their  award,  he,  the 
defendant,  by  deed,  revoked  their  authority,  of  which  deed  and 
revocation  of  their  authority,  the  arbitrators  before  the  making  of 
the  award  in  the  first  count  mentioned,  had  notice.  To  this  plea 
the  plaintiff  demurred.  The  defendant  demurred  to  the  second 
count  of  the  declaration,  and  assigned  for  cause,  that  it  was  not 
alleged,  that  the  arbitrators  had  notice  of  the  revocation,  nor  was 
it  shewn  how  the  defendant  hindered  them  from  making  their 
award. 

Abbott,  C.  J.^  I  am  of  opinion,  that  the  defendant  is  entitled 
to  judgment  upon  the  demurrer  to  the  plea  to  the  first  count  of  the 
declaration.  The  ground  of  complaint  in  that  count  is  the  non- 
payment of  money  pursuant  to  the  award,  or  in  other  words,  a 
breach  of  the  covenant  to  perform  the  award  when  made.  It 
appears  by  the  plea,  that  the  defendant,  by  countermancUng  the 
authority  of  the  arbitrators,  has  broken  the  covenant  to  abide  by 
the  award,  or  that  whereby  he  stipulated  not  to  hinder  the  arbitra- 
tors from  making  an  award;  and  it  is  urged  on  the  part  of  the 
plaintiff,  that  although  this  plea  is  an  answer  to  the  cause  of  action 
suggested  in  this  count,  yet  that,  inasmuch  as  it  appears  upon  the 
whole  record  that  the  defendant  has  been  guilty  of  a  breach  of 
covenant,  the  plaintiff  is  entitled  to  judgment  upon  that  count, 
and  the  case  of  Charnley  v.  Winstanley  (5  East,  266)  has  been 
relied  upon.  That  case,  however,  is  very  distinguishable  from  the 
present.  There  it  appeared  upon  the  face  of  the  plaintiff's  count, 
that  the  award  was  made  after  one  of  the  parties  to  the  submission 
had  become  a^fenie  coVert.  Her  marriage  was  in  itself  a  revocation 
of  the  authority  of  the  arbitrators,  and  therefore  was  a  breach  of 
the  covenant  to  abide  by  the  award.  In  this  case,  the  breach  of 
that  covenant  is  disclosed  only  by  the  defendant's  plea,  and  it 
never  has  been  held,  that  a  plaintiff  who  seeks  to  recover  damages 
for  one  ground  of  action  stated  in  his  count,  is  entitled  to  recover 
in  respect  of  another  disclosed  by  the  defendant's  plea.  I  am  of 
opinion,  that  a  plaintiff  can  recover  only  in  respect  of  the  ground 
of  action  stated  in  his  declaration.  As  to  the  demurrer  to  the  last 
count,  I  cannot  distinguish  this  from  Vynior's  case.  There  the 
allegation  was,  that  the  party  by  his  deed  revoked  the  authority  of 

1  Concurring  opinions  of  Bayley  and  Holroyd,  JJ.,  are  omitted.  Beet,  J., 
was  absent.  —  Ed. 


196  PLEADING 

the  arbitrator,  and  the  decision  was,  that  that  allegation  imported 
notice  to  have  been  given  to  the  arbitrator,  and  that  being  so,  the 
case  is  expressly  in  point  with  the  present.  If  the  declaration  in 
this  case  had  alleged,  that  the  party  had  sealed  and  delivered  a 
certain  deed,  containing  therein  as  follows,  and  setting  out  the 
deed,  and  thereby  revoked  the  authority  of  the  arbitrators,  it 
would  not  have  been  sufficient,  for  that  would  only  have  been  an 
allegation  of  the  effect  of  the  deed.  Here  the  allegation  is,  that 
there  was  an  express  revocation  by  deed.  .  .  . 

Judgment  for  the  defendant  upon  the  demurrer  to  the  plea  to  the 
first  count,  and  judgment  for  the  plaintiff  upon  the  demurrer  to  the 
last  count. ^ 


AYRES   V.   COVILL. 
Supreme  Court  of  New  York.     1854. 
[Reported  18  Barbour,  260.] 

This  was  an  action  for  slander^The  complaint  alleged  that  the 
defendant  charged  the  plaintiff  with  stealing  a  written  examination 
of  a  witness  taken  before  one  Torry,  a  justice  of  Saratoga  county, 
and  filed  with  him.  The  complaint  did  not  state  that  the  examina- 
tion was  taken  in  any  judicial  proceeding.  A  statute  made  it  crim- 
inal to  steal  a  record  of  a  court  of  justice,  filed  with  an  officer  of  such 
court.  The  defendant  filed  an  answer  containing  six  subdivisions. 
The  third  subdivision  of  the  answer  stated  that  the  examination 
was  taken  in  a  certain  civil  proceeding  before  Torry,  and  denied 
that  it  had  been  filed  Avith  him.  The  sixth  subdivision  stated  that 
the  plaintiff's  general  moral  character  was  bad.  The  plaintiff 
demurred  to  the  sixth  subdivision  of  the  answer  on  the  ground  that 
it  did  not  state  facts  sufficient  to  constitute  a  defense. 

The  court  at  a  special  term,  sustained  the  demurrer,  holding  that 
the  portion  of  the  answer  demurred  to  was  insufficient;  that  the 
plaintiff  might  go  back  to  the  complaint  and  object  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action;  and  that  tliis 
complaint  was  defective  in  that  it  did  not  appear  that  the  paper 
alleged  to  have  been  abstracted  was  taken  in  any  judicial  proceed- 
ing. But  the  court  further  held  that  the  defendant  had  cured  that 
defect;  as,  in  the  third  subdivision  of  his  answer,  he  had  supplied 
all  necessary  averments.     The  defendant  appealed. 

1  Compare  the  law  as  to  departures,  considered  infra.  —  Ed. 


AYRES    V.    COVILL  197 

By  the  Court,  Hand,  P.  J.^  .  .  .  But  it  is  contended  that  the 
averments  in  the  third  part  or  division  of  the  answer  supply  these 
deficiencies  of  the  complaint.  And  the  judge  at  special  term  so 
decided;  feeling  bound  by  the  remarks  of  Mr.  Justice  Spencer,  in 
delivering  the  opinion  of  the  court  in  Vaughan  v.  Havens  (8  John. 
110),  and  by  the  case  of  Drake  v.  Corderoy  (Cro.  Car.  288),  there 
cited.  But  in  Vaughan  v.  Havens  the  question  did  not  in  fact 
arise;  for  there  was  no  plea  but  the  general  issue,  and  the  court 
held  the  defendant  might  use  the  notice  of  justification  accompany- 
ing it  or  not,  as  he  should  be  advised.  In  Drake  v.  Corderoy,  the 
defendant  justified,  and  in  so  doing  supplied  the  omission  of  a 
material  averment  in  the  declaration;  and  the  court  correctly 
held  that  cured  the  defect.  But  here,  the  demurrer  is  to  one  plea 
or  answer,  and  the  admission  or  averment  is  found  in  another."^ 
Such  an  admission  will  not  avail  the  plaintiff  on  this  demurrer. 
Robins  v.  Lord  Maidstone,  4  Q.  B.  Rep.  811.  Harrington  vT^ 
McMorris,  5  Taunt.  228.  Smith  v.  Martin,  9  M.  &  W.  304. 
Edmund  v.  Groves,  2  Id.  642.  Firmin  v.  Cruciffix,  5  C.  &  P.  97. 
Montgomery  v.  Richardson,  Id.  247.  Troy  and  Rutland  R.  Co.  v. 
Kerr,  17  Barb.  581.  The  admission  made  in  the  course  of  a  plead- 
ing is  not  an  admission  for  all  the  purposes  of  the  cause;  but,  as 
Lord  Denman  stated  in  Robins  v.  Maidstone,  correcting  what  he 
had  said  in  Bingham  v.  Stanley  (2  Q.  B.  Rep.  127),  is  an  admission 
"  for  all  purposes  regarding  the  issue  arising  from  that  pleading." 
The  plaintiff  has  taken  issue  upon  this  third  answer  (see  Code, 
§  168),  and  he  may  give  evidence  also  of  matter  in  avoidance 
thereof.  (Id.)  And  any  admission  therein  may  be  considered  an 
admission  in  that  line  of  defense  or  pleading.  But  that  plea  or 
answer  is  not  before  the  court  on  this  demurrer.  .  .  . 

The  judgment  must  be  reversed;  but,  under  the  circumstances, 
both  parties  should  have  leave  to  amend,  with  costs  to  abide  the 
event  of  the  suit.  Ordered  accordingly.^ 

'  The  statement  of  facts  is  abridged,  and  a  part  of  the  opinion  in  which  the 
sixth  sub-division  of  the  answer  and  the  complaint  are  held  insufficient,  is 
omitted.  — ■  Ed. 

'  One  count  cannot  on  demurrer  thereto  be  aided  by  allegations  in  a  separ- 
ate count  not  incorporated  by  reference  in  the  count  demurred  to.     Birdsall  v.     1 
Birdsall,  52  Wis.  208.  ^ 

A  plea  cannot  on  demurrer  thereto  be  aided  by  allegations  in  a  separate'^ 
plga  not  incorporated  by  reference  in  the  plea  demurreHToT^  Hammond™!  ( 
Earle,  58  How.  Pr.  (N.  Y.),  426,  4.37.  -^ 

In  Davies  v.  Penton,  6  Barn.  &  Cres.  216,  the  plaintiff  brought  an  action  for 
breach  of  contract.     The  dffendant  interposed  two  bad  pleas  of  set-off.     To 


198  PLEADING      V         f\  |i  /*^ 


\^  i^ 


Statute  27  Elizabeth,  Chapter  V,  Section  I  (1585). 

[6  Statutes  at  Large,  360.] 

Forasmuch  as  excessive  charges  and  expences,  and  great  delay 
and  hindrance  of  justice,  hath  grown  in  actions  and  suits  between 
the  subjects  of  this  realm,  by  reason  that  upon  some  small  mistak- 
ing or  want  of  form  in  pleading,  judgments  are  often  reversed  by 
writs  of  error,  and  oftentimes  upon  demurrers  in  law  given  other- 
wise than  the  matter  in  law  and  very  right  of  the  cause  doth  re- 
quire, whereby  the  parties  are  constrained  either  utterly  to  lose 
their  right,  or  else,  after  long  time  and  great  trouble  and  expences, 
to  renew  again  their  suits:  for  remedy  whereof,  be  it  enacted  by 
the  Queen's  most  excellent  majesty,  the  lords  spiritual  and  tem- 
poral, and  the  commons,  in  this  present  parliament  assembled,  and 
by  the  authority  of  the  same.  That  from  henceforth,  after  demurrer 
joined  and  entred  in  any  action  or  suit  in  any  court  of  record 
within  this  realm,  the  judges  shall  proceed  and  give  judgment 
according  as  the  very  right  and  cause  of  the  matter  in  law  shall 
appear  unto  them,  without  regarding  any  imperfection,  defect,  or 
want  of  form  in  any  writ,  return,  plaint,  declaration,  or  other  plead- 
ing, process,  or  course  of  proceeding  whatsoever,  except  those  only 
which  the  party  demurring  shall  specially  and  particularly  set 
down  and  express  together  with  his  demurrer;  and  that  no  judg- 
ment to  be  given  shall  be  reversed  by  any  writ  of  error,  for  any  such 
imperfection,  defect,  or  want  of  form  as  is  aforesaid,  except  such 
only  as  is  before  excepted.^ 

the  first  plea  the  plaintiff  demurred.  To  the  second  he  interposed  a  replication, 
alleging  his  discharge  in  bankruptcy.  The  demurrer  was  sustained,  the  court 
refusing  to  consider,  on  the  demurrer  to  the  first  plea,  the  facts  alleged  in  the 
replication  to  the  second  plea.  —  Ed. 

1  This  statute  was  supplemented  by  the  statute  4  Anne,  c.  16,  sec.  1,  which 
provided  that  "  from  and  after  the  said  first  day  of  Trinity  term,  no  advantage 
or  exception  shall  be  taken  of  or  for  an  immaterial  traverse;  or  of  or  for  the 
default  of  entering  pledges  upon  any  bill  or  declaration;  or  of  or  for  the  default 
of  alleging  the  bringing  into  court  any  bond,  bill,  indenture,  or  other  deed 
whatsoever  mentioned  in  the  declaration  or  other  pleading;  or  of  or  for  the 
default  of  alleging  of  the  bringing  into  court  letters  testamentary,  or  letters  of 
administration;  or  of  or  for  the  omission  of  Vi  et  Armis  et  contra  pacem,  or 
either  of  them;  or  of  or  for  the  want  of  averment  of  Hoc  paratus  est  veri- 
ficare,  or  Hoc  paratus  est  verificare  per  Recordum;  or  of  or  for  not  alleging  prout 
patet  per  Recordum,  but  the  court  shall  give  judgment  according  to  the  very 
right  of  the  cause,  as  aforesaid,  without  regarding  any  such  imperfections, 
omissions,  and  defects,  or  any  other  matter  of  like  nature,  except  the  same  shall 
be  specially  and  particularly  set  down  and  shown  for  cause  of  demurrer."  — 
JEd. 


MATHEWS    V.    CONVERSE  199 

.'..       [Form  of  Special  Demurrer.] 

In  the Court  of  the  County  of ,  State  of 

C.  D.  1  And  the  defendant  by  X.  Y.,  his  attorney,  says  that  the 
ats.  \  said  dechiration  is  not  sufficient  in  law.  And  the  defen- 
A.  B.  J  dant  states  and  shows  to  the  court  here  the  following 
causes  of  demurrer  to  the  said  declaration,  that  is  to  say,  that 
[Here  state  the  particular  causes].  And  also  that  the  said  declaration 
is  in  other  respects  uncertain,  informal,  and  insufficient,  etc. 

X.  Y.,  Attorney  for  Defendant. 


MATHEWS   V.   CONVERSE  et  al. 
Supreme  Court  of  Errors  of  Connecticut.     1910. 

[Reported  83  Connecticut,  511.] 

Suit  to  foreclose  a  judgment  lien  and  to  have  certain  convey- 
ances set  aside  as  fraudulent  and  void  against  the  plaintiff,  brought 
to  the  Superior  Court  in  Tolland  County  where  a  demurrer  to  the 
complaint  was  overruled  (Ralph  Wheeler,  J.)  and  the  cause  was 
afterward  tried  to  the  court,  Case,  J.;  facts  found  and  judgment 
rendered  for  the  plaintiff,  from  which  the  defendants  appealed. 

No  error. 

Thayer,  J.^  The  complaint  states  that  the  plaintiff  obtained  a 
judgment  against  three  of  the  defendants,  Mira  L.  Converse, 
Lilfia^.^Lee,  and  Louis  S.  Converse,  at  the  September  term,  1905, 
of  the  Superior  Court  in  Tolland  county,  that  the  judgment  was 
partially  satisfied  only,  and  that  a  lien  for  the  balance  due  upon  the 
ju3gment  was  placed  upon  the  property  now  sought  to  be  fore- 
closed. It  is  alleged  that  this  property  was  attached  on  May  23d, 
1905,  upon  the  original  writ  in  the  action,  as  the  propert}^  of  the 
defendants  above  named,  and  that  they  are,  as  to  the  plaintiff,  the 
actual  owners  of  the  property,  but  that  in  September  and  October, 
1903,  and  in  January,  1904,  the  different  parcels  of  land  comprising 
the  property  attached  had  been  conveyed  by  them  to  others  of  the 
defendants  with  the  fraudulent  intent,  which  was  known  to  the 
grantees,  to  avoid  the  claims  upon  which  the  judgment  was 
based.  .  .  . 

Only  one  question  deserving  mention  was  raised  by  the  demurrer, 
namely,  whether  the  complaint  shows  that  at  the  time  the  alleged 
fraudulent  conveyances  were  made  the  grantors  therein  owed  any 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 


200  PI^ADING 

^  ^  debt  or  duty  to  the  plaintiff.  It  appears  that  the  action  which  was 
/T".//  brought  to  enforce  the  payment  of  the  obhgation  was  brought 
subsequent  to  the  making  of  the  conveyances.  It  does  not  follow 
from  this  fact  that  the  obligation  did  not  exist  at  the  time  the 
conveyances  were  made.  It  is  alleged  in  the  complaint  that  the 
fraudulent  purpose  in  maldng  them  was  to  avoid  the  claim  upon 
which  the  judgment  in  that  suit  was  based.  This  is  an  argumen- 
tative rather  than  a  direct  allegation  of  the  existence  of  the  claim 
at  the  time  of  the  conveyances.  But  the  demurrjer  was  to  jthe. 
substance,  not  to  the  form,  of  the  complaint.  The  allegations 
were  sufficient  to  admit  proof  that  there  was  an  existing  debt,  at 
the  time  of  the  conveyance,  due  from  the  grantors  to  the  plaintiff. 
The  complaint  was  sufficient  in  substance,  and  the  demurrer  was 
properly  overruled.  - 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred.^ 


^ 


RYLEY  V.   PARKHURST  and  two  others 


King's  Bench.     1748.     ,       «>/^ 


[Reported  1  Wilson,  219.] 

Trespass  for  taking  and  impounding  the  cattle  of  the  plaintiff 
at  Teddington  in  the  county  of  Middlesex.  All  the  defendants 
plead  the  general  issue  and  thereupon  issue  is  joined.  Two  of  the 
'^fendants  plead  another  plea  (without  saying  by  leave  of  the 
court),  that  one  of  them  is  seised  of  a  certain  close  at  Kingston  in 
Surry,  and  the  other  as  his  servant,  and  justify  the  taking  the 
cattle  there  damage  feasant,  and  that  they  drove  them  to,  and 
impounded  them  at  Teddington,  as  it  was  lawful  for  them  to  do. 
The  plaintiff  demurs,  and  therein  says  that  the  plea  is  uncertain, 
informal,  and  double,  but  does  not  say  what  the  duplicity  is. 

Lawson  for  the  plaintiff  —  1st,  This  is  a  double  plea,  for  the 
general  issue  is  an  answer  to  the  whole  declaration,  and  the  other 
plea  is  not  said  to  be  with  leave  of  the  court  .^  .  .  . 

Serjeant  Bootle,  contra  —  As  to  the  1st  objection,  Bartholomew 
V.  Ireland,  Mich.  11  Geo.  2,  B.  R.  Trespass  for  breaking  and 
entering    plaintiff's    chambers    in    Staples-Inn,     the    defendant 

1  See  Sheridan  v.  Sheridan,  58  Vt.  504,  5  Atl.  494;  Walker  v.  Wooster's 
Admr.,  61  Vt.  403,  17  Atl.  792;  6  Encyc.  of  PI.  and  Pr.  272.  —  Ed. 

2  Only  so  much  of  the  opinion  as  relates  to  the  point  of  duplicity  is  here 
given.  —  Ed. 


iA/UUi^'l  /jlu-i 


CENTRAL    R.  R.    CO.    OF   NEW   JERSEY   V.    VAN   HORN  201 

pleaded  several  pleas  without  saying  by  leave  of  the  court,  which 
was  shewn  for  special  cause  of  demurrer;  but  the  court  only  said 
it  was  an  irregularity,  and  held  it  good  on  a  demurrer;  Sir  John 
Strange  was  for  the  plaintiff,  and  myself  for  the  defendant,  who  had 
judgment,  and  the  duplicity  must  be  pointed  out  by  the  demurrer, 
which  is  not  done  here.     Salk.  219.     Comyns  115.  .  .  . 

Of  this  opinion  was  the  court  in  both  points,  and  judgment  for 
the  defendant  -per  totam  curiam.^ 


4 


THE   CENTRAL   RAILROAD   COMPANY   OF  NEW  .l^?*'^ 

JERSEY  ads.  VAN   HORN   and  her  husband.  .  ,^.  ■        y%jL 

Supreme  Court  of  New  Jersey.     1875.  ^     A      ^  ^ 

[Reported  38  New  Jersey  Law,  133.]  C^-'^^ 

Beasley,  C.  J.2  .  .  .  The  second  count,  on  the  point  of  negligence,- 

differs  from  the  first,  by  omitting,  altogether,  all  account  of  the 
mode  of  such  negligence.  It  shows,  merely,  that  the  plaintiff  was 
in  the  cars,  under  a  duty  of  the  defendant  to  carry  her  safely,  and 
then  avers,  that  she  was,  "  through  the  negligence,  carelessness  and 
misdirection  of  the  defendant  and  its  agents  and  servants,  thrown 
from  and  under  the  coaches  or  railcars  of  the  said  defendant,  by 
means  whereof,"  &c. 

It  is  obvious  that  such  a  charge  as  this  goes  but  a  little  way 
towards  informing  the  defendant  of  the  case  to  be  set  up  against  it. 
I  find  no  precedent  in  which  such  extreme  generality  of  statement, 
yA\h  respect  to  the  fact  of  the  carelessness  forming  the  action,  has 

___been  sanctioned.  It  is  true,  that  in  a  suit  in  case  for  negligence  it 
is  quite  common  to  aver  that  the  injury  was  inflicted  by  the  want 

-^^of  care  in  the  defendant,  omitting  all  specification  of  the  mode  of 
the  fault.  But  it  will  be  found,  upon  scrutiny,  that  in  such  cases 
the  act,  concerning  the  doing  of  which  negligence  is  predicated,  is 
of  a  simple  character,  so  that  an  allegation  of  an  absence  of  care  in 
its  performance,  becomes  reasonably  intelligible.  Thus,  when  it 
is  stated  that  a  defendant's  boat,   by  his   "  carelessness,   mis- 

1  See  Ferguson  v.  National  Shoemakers,  108  Me.  189,  79  Atl.  469. 

Even  before  the  statute  of  27  Elizabeth  duplicity  could  be  taken  advantage 
of  only  on  special  demurrer. 

But  the  defect  of  misjoinder  of  causes  of  action  may  at  common  law  be 
taken  advantage  of  on  general  demurrer.  Wilkins  v.  Standard  Oil  Co.,  71  N. 
J.  L.  399,  59  Atl.  14;  Gould,  Pleading,  2ded.,  4.37.  —  Ed. 

^  The  statement  of  facts  and  a  part  of  the  opinion  upholding  another  count 
in  the  declaration  are  omitted.  —  Ed. 


-■^-^■j-it. 


202  PLEADING 


/A/i 


management,  and  want  of  care,"  as  in  the  form  in  2  Chitty's  PI. 
711,  ran  foul  of  and  struck  the  vessel  of  the  plaintiff,  an  amount  of 
information  sufficient  to  enable  the  defendant  to  understand  the 
case  to  be  made  against  him,  is  evidently  communicated.  Simi- 
larly this  is  done  in  other  instances,  that  may  be  found  in  the  books 
of  precedents.  The  case  cited  in  the  brief  of  the  counsel  of  the 
defendant  is  one  of  this  class,  it  being  an  action  by  a  railroad  com- 
pany for  causing  the  death  of  a  person  by  running  over  him  with  a 
locomotive,  and  it  being  held  that  a  general  averment  that  the 
defendant,  by  its  agents,  did  carelessly  and  negligently  run  over, 
&c.,  was  sufficient,  without  stating  the  particulars  of  such  negli- 
gence. Indianapolis  P.  &  E.  R.  R.  Co.  v.  Kelley's  Adm'rs,  23  Ind. 
133.  So  the  same  absence  of  particularity  is  allowable  where  the 
knowledge  of  the  circumstances  must,  in  the  nature  of  things,  be 
confined  to  the  party  inculpated;  as  where  goods  are  lost  by  the 
carelessness  of  a  bailee,  in  which  case  it  seldom  happens  that  the 
owner  knows  the  fault  which  occasioned  the  loss.  But  the  present 
case  differs  from  these  in  its  obvious  complexity,  and  in  the  cir- 
cumstances that  the  plaintiff  must  be  possessed  of  some  further 
knowledge  of  the  manner  of  the  casuality.  The  statement  is,  that 
she  was  in  the  cars,  and  was  thrown  out  by  the  negligence  of  the 
agents  of  the  defendant.  The  field  covered  by  such  a  general 
allegation  is,  in  reality,  immense,  for  it  embraces  everything 
involved  in  the  construction  of  the  road  and  its  equipments,  or  in 
anywise  connected  with  its  methods  of  running.  A  railroad  com- 
pany must,  of  necessity,  transact  its  business  by  means  of  innu- 
meral3le  agents,  and  hence,  to  allege,  that  by  some  act  done  or 
omitted,  by  some  one  of  such  agents,  an  accident  has  occurred,  is 
to  convey  very  little  practical  intelligence.  A  general  charge  of 
carelessness,  when  used  in  such  a  connection,  has  a  very  different 
effect  from  what  it  has  when  applied  to  the  single  act  of  sailing  a 
boat  or  driving  a  wagon.  There  is  no  very  exact  criterion  on  that 
subject,  the  only  general  rule  that  can  be  propounded,  being  to  the 
effect,  that  the  certainty  in  the  statement  of  the  plaintiff's  case 
must  be  such  that  it  is  intelligible,  and  that  in  a  reasonable  meas- 
ure it  apprises  the  defendant  of  the  substantial  case  to  be  made 
against  him.  In  my  judgment,  this  has  not  been  done  in  this 
second  count,  and  therefore  I  should  have  struck  it  out  on  a  motion 
for  that  purpose.  But  it  is  clearly  good  on  a  general  demurrer, 
the  defect  being  one  of  form,  and  not  of  substance. 

The  plaintiff  must  have  judgment,  with  the  usual  leave  for  the 
defendant  to  plead  anew. 


y,,.^.^..^-^^  ^ 


MACtTRDA  V.   LEWISTON  JOURNAL   COMPANY 


MACURDA  V.   LEWISTON  JOURNAL   COMPANY. 
Supreme  Judicial  Court  of  Maine.     1908. 


203-1 


[Reported  104  Maine,  554.] 

King,  J.     Each  action  is  to  recover  damages  for  an  alleged  libel 

and  is  before  the  Law  Court  on  a  general  demurrer  to  the  declara- 
tion. In  the  first  action  the  publication  of  the  alleged  libelous 
matter  is  stated  in  this  form : 

"  Said  defendant  did  .  .  .  falsely  and  maliciously  compose, 
print,  pubhsh  and  circulate,  or  cause  to  be  composed,  printed, 
published  and  circulated  in  a  certain  public  newspaper  ...  a 
certain  scandalous  and  malicious  libel  of  and  concerning  the  plain- 
tiff." 

In  the  other  action  the  publication  is  stated  in  this  form : 

"  Said  defendant  did  .  .  .  falsely  and  maliciously  compose  and 
publish  or  cause  and  prepare  to  be  composed  and  published  .  .  . 
in  a  certain  newspaper  ...  a  certain  scandalous  and  malicious 
libel  of  and  concerning  the  plaintiff."  .     j       ^' 

It  is  a  general  rule  of  pleading,  too  well  settled  to  need  the  cita-    ^<>m>*'^*^''*'^''^^ 
tion  of  authorities,  that  the  declaration  must  allege  the  gravamen  '.  S^O-A/^'"^^  \) 
—  the  grievance  complained  of  with  such  precision,  certainty  and  L\J'  to.^^ 
definiteness  that  the  defendant  may  know  what  to  answer  by  his 
pleading  and  proof. 

A  disjunctive  allegation  as  to  the  essence  of  the  cause  of  action  \ 
is  as  pure  an  example  of  uncertainty  and  indefiniteness  in  pleading  | 
as  can  well  be  found,  for  it  completely  conceals  from  the  defendant  ; 
the  ground  upon  which  a  recovery  is  claimed.  -  -    ' 

Such  form  of  allegation  has  been  uniformly  regarded  as  fatally 
defective. 

"  A  pleading  is  bad  under  any  system  of  practice  when  it  states 
material  facts  in  the  alternative,  so  that  it  is  impossible  to  deter- 
mine upon  which  of  several  equally  substantive  averments  the 
pleader  relies  for  the  maintenance  of  his  action  or  defense."  6 
Ency.  PI.  &  Pr.,  page  268;  Chitty  on  PL,  16th  Am.  Ed.,  star  page 
260;  Stephen  on  PL  240;  State  v.  Singer,  101  Maine,  299. 

In  the  last  case  cited  this  court  recently  decided  that  such  form 
of  charging,  in  the  disjunctive,  in  an  indictment  for  libel,  violates 
the  rule  of  certainty  in  criminal  pleading  and  is  fatal  on  general 
demurrer.     It  is  there  said: 

"  To  be  charged  with  printing  and  publishing  a  libel  is  one  thing 
and  to  defend  against  it,  evidence  of  one  kind  may  be  required, 


■/ 


204  PLEADING 

while  to  meet  the  charge  of  having  caused  a  Hbel  to  be  printed  and 
pubUshed  may  require  evidence  of  another  and  entirely  different 
character.     This  distinction  goes  to  the  essence  of  the  charge." 

Applying  the  same  rule  of  certainty  to  the  declarations  in  the 
cases  before  us,  with  like  discriminating  reasoning,  and  they  are 
found  defective  because  of  the  disjunctive  form  in  which  the  pub- 
lication is  alleged. 

But  it  is  suggested  by  plaintiff  that  such  defect  is  not  reached 
by  a  general  demurrer.  We  think  it  is.  It  is  not  a  defect  in 
form,  but  in  substance.  The  question  to  be  answered  by  the  dec- 
laration is :  What  act  of  defendant  is  relied  upon  ?  The  answer  is 
uncertain;  either  that  he  did  an  act  complained  of,  or  caused  it  to 
be  done.  This  uncertainty  of  allegation  goes  to  the  very  essence 
of  the  cause  of  action  —  to  the  act  of  defendant  from  which  the 
cause  of  action  springs. 
\  If  from  the  declaration  the  cause  of  action  does  not  sufficiently 
'x'  appear  the  pleading  is  defective  in  matter  of  substance. 

Here  the  plaintiff  has  alleged  in  each  declaration  that  the  defend- 
ant did  either  one  or  the  other  of  two  substantive  acts,  but  he  has 
not  disclosed  upon  which  of  those  acts  he  relies  as  the  cause  of 
action. 
VA     It  is  the  opinion  of  the  court  that  the  declaration  in  each  case  is 
^  defective  because  of  the  disjunctive  form  of  allegation  used,  and 
^    that  the  defect  is  reached  by  general  demurrer. 
^         This  conclusion  makes  it  unnecessary  to  consider  the  other  partic- 
'      ulars  in  which  it  is  claimed  the  declarations  are  defective.     The 
entry  in  each  case  must  be,  Exceptions  sustained} 


BURNET  V.  BISCO. 
Supreme  Court  of  New  York.     1809.  \\tf'    \ 

[Reported  4  Johnson,  235.1  i^ 

This  was  an  action  of  assumpsit.  The  declaration  stated,  that 
on  the  26th  February,  1808,  the  defendant  made  an  agreement  in 

1  A  declaration  alleging  two  facts  in  the  alternative,  only  one  of  which  is 
sufficient  to  constitute  a  cause  of  action,  is  demurrable.  Hoffman  v.  City  of 
Maysville,  123  Ky.  707,  97  S.  W.  360;  Anderson  v.  Minneapolis,  etc.,  Ry.  Co., 
103  Minn.  224,  114  N.  W.  1123.  Compare  Casey  Pure  MUk  Co.  v.  Booth 
Fisheries  Co.,  124  Minn.  117,  144  N.  W.  450,  51  L.  R.  A.  (n.  s.),  640.  See 
31  Cyc.  74. 

As  to  the  distinction  in  general  between  defects  of  form  and  defects  of 
substance,  see  Gould,  Pleading,  2d  ed.,  p.  467.  —  Ed. 


BURNET   V.    BISCO  205 

writing  ^dth  the  plaintiff,  whereby  she  agreed  to  give  the  plaintiff 
the  refusal  of  the  farm  on  which  she  lived,  with  the  south  half 
of  the  house,  for  the  term  of  two  years,  from  the  1st  of  April,  1808, 
together  \vith  the  stock,  &c.,  at  the  following  rate,  viz.,  for  the  first 
year,  600  dollars,  140  of  which  to  be  paid  in  November,  160  dollars 
in  December,  and  the  remainder  on  the  1st  May  following.  For 
the  second  year,  900  dollars  was  to  be  paid  at  the  like  periods,  the 
stock  to  be  appraised  by  certain  persons,  on  the  1st  April,  1808, 
and  again  at  the  end  of  the  two  years,  and  the  same  amount  of 
stock  to  be  returned,  and  good  security  given  for  the  performance  of 
the  contract;  the  farm  to  be  left  in  as  good  repair  at  the  end  of  the 
two  years,  as  at  the  commencement,  &c.,  &c.,  reserving  to  the  de- 
fendant land  sufficient  for  her  son  to  keep  three  horses,  and  for 
him  to  improve  in  his  own  person,  and  for  pasturing  a  cow.  The 
plaintiff  averred,  that  on  the  1st  April,  1808,  he  performed  the 
agreement,  as  far  as  his  part  was  to  be  performed,  and  was  then  at 
the  place  ready  to  have  the  stock  appraised,  &c.,  and  also  tendered 
good  securit}'  for  the  performance  on  his  part,  &c.,  yet  the  defend- 
ant not  regarding,  &c.,  assigning  breaches  of  the  whole  agreement 
on  the  part  of  the  defendant. 

To  this  declaration  the  defendant  demurred  specially,  and 
assigned  the  following  causes: 

1.  Because  the  plaintiff,  though  he  states  that  the  defendant  did 
not  give  the  plaintiff  the  refusal  of  the  farm,  &c.,  does  not  state 
that  the  defendant  disposed  of  the  farm  to  any  other  person,  or 
that  she  retained  it  herself. 

2.  That  the  declaration  does  not  state  where  the  farm  was 
situated,  nor  its  value,  nor  the  number  of  acres,  nor  the  quantity  of 
land  to  be  reserved  for  the  defendant's  son,  nor  how  much  was 
requisite  for  the  defendant's  son;  so  that  by  reason  of  this  uncer- 
tainty there  was  no  rule  by  which  to  measure  the  damages. 

3.  The  declaration  does  not  state  who  were  to  be  the  appraisers. 

4.  The  plaintiff  does  not  state  what  kind  of  security  he  offered, 
nor  whether  it  was  wTitten  or  parol. 

To  this  demurrer  there  was  a  joinder,  and  the  same  was  sub- 
mitted to  the  court  A\athout  argument. 

Per  Curiam.  A  defect  in  substance  in  this  declaration  is,  that 
there  is  no  consideration  stated.  The  defendant  agreed  to  give  the 
refusal  of  the  farm  to  the  plaintiff;  but  he  did  not  agree  to  take  it, 
and  there  was  no  promise  on  his  part  as  a  consideration  for  the 
promise  of  the  defendant,  nor  any  money  paid  or  other  valuable 
consideration  given.     The  agreement  was  a  mere  nudum  pactum. 


206  PLEADING 

A  consideration  is  as  necessary  to  an  agreement  reduced  to  writing, 
as  if  it  remained  in  parol.  (1  Saund.  211,  note  2.)  There  must  be 
judgment  for  the  defendant.^ 

New  York  Code  of  Civil  Procedure. 

Sec.  488.  The  defendant  may  demur  to  the  complaint,  where  one 
or  more  of  the  following  objections  thereto  appear  upon  the  face 
thereof. 

1.  That  the  court  has  not  jurisdiction  of  the  person  of  the 
defendant. 

2.  That  the  court  has  not  jurisdiction  of  the  subject  of  the 
action. 

3.  That  the  plaintiff  has  not  legal  capacity  to  sue. 

4.  That  there  is  another  action  pending  between  the  same 
parties,  for  the  same  cause. 

5.  That  there  is  a  misjoinder  of  parties  plaintiff. 

6.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant. 

7.  That  causes  of  action  have  been  improperly  united. 

8.  That  the  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action. 

Sec.  490.  The  demurrer  must  distinctly  specify  the  objections 
to  the  complaint;  otherwise  it  may_be  disregarded.  An  objection, 
taken  under  subdivision  first,  second,  fourth,  or  eighth  of  section 
four  hundred  and  eighty-eight  of  this  act,  may  be  stated  in  the 
language  of  the  subdivision;  an  objection,  taken  under  either  of 
the  other  subdivisions,  must  point  out  specifically  the  particular 
defect  relied  upon. 

^  In  Milroy  v.  Hensley,  2  Bibb  (Ky.),  20,  the  court  said:  "  The  rule  in  this 
respect  seems  to  be,  that  on  a  special  demurrer  the  party  can  take  no  advan- 
tage of  any  other  defect  of  form  than  what  he  hath  expressed  in  his  demurrer, 
but  that  he  may  of  matters  of  substance,  whether  particularly  alleged  or  not."^  | 

In  State  v.  Covenhoven,  1  Halst.  (N.  J.),  396,  p.  401,  the  court  said: 
"  Another  observation  may  here  be  made,  in  answer  to  what  was  dropped  by 
one  of  counsel,  on  the  argument.  It  was  said  that  on  a  special  demurrer,  no 
objection  can  be  taken  to  what  is  not  particularly  specified  in  the  demurrer, 
and,  therefore,  that  the  prosecution  is  precluded  from  urging  some  of  the  objec- 
tions which  have  been  made.  The  observation,  so  far  as  it  relates  to  formal 
defects,  is  correct,  and  warranted  by  the  statute,  but  defects  of  substance  may 
be  taken  advantage  of  at  any  time." 

In  England  by  the  Common  Law  Procedure  Act,  1852  (15  &  16  Vict.,  c. 
76,  sec.  51),  it  was  held  that  "  no  pleading  shall  be  deemed  insufficient  for  any 
defect  which  could  heretofore  only  be  objected  to  by  special  demurrer." 

There  has  been  similar  legislation  in  most  of  the  states  in  this  country.  — ■ 
Ed. 


NEW    YORK    CODE    OF    CIVIL    PROCEDURE  207 

Sec.  492.  The  defendant  may  demur  to  the  whole  complaint, 
or  to  one  or  more  separate  causes  of  action,  stated  therein.  In  the 
latter  case,  he  may  answer  the  causes  of  action  not  demurred  to. 

Sec.  493.  The  defendant  may  also  demur  to  the  repty,  or  to  a 
separate  traverse  to,  or  avoidance  of,  a  defence  or  counterclaim, 
contained  in  the  reply,  on  the  ground  that  it  is  insufficient  in  law, 
upon  the  face  thereof. 

Sec.  494.  The  plaintiff  may  demur  to  a  counterclaim  or  to  a 
defence  consisting  of  new  matter,  contained  in  the  answer,  on  the 
ground  that  it  is  insufficient  in  law,  upon  the  face  thereof. 

Sec.  498.  Where  any  of  the  matters  enumerated  in  section  four 
hundred  and  eighty-eight  of  this  act  as  grounds  of  demurrer,  do  not 
appear  on  the  face  of  the  complaint,  the  objection  may  be  taken  by 
answer. 

Sec.  499.  If  such  an  objection  is  not  taken,  either  by  demurrer 
or  answer,  the  defendant  is  deemed  to  have  waived  it;  except  the 
objection  to  the  jurisdiction  of  the  court,  or  the  ol)jection  that  the 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action. 

Sec.  537.  If  a  demurrer,  answer,  or  reply  is  frivolous,  the 
party  prejudiced  thereb}',  upon  a  previous  notice  to  the  adverse 
party,  of  not  less  than  five  days,  may  apply  to  the  court  or  to  a 
judge  of  the  court  for  judgment  thereupon,  and  judgment  may  be 
given  accordingly.  If  the  application  is  denied,  an  appeal  cannot 
be  taken  from  the  determination,  and  the  denial  of  the  application 
does  not  prejudice  any  of  the  subsequent  proceedings  of  either 
party.  Costs,  as  upon  a  motion,  may  be  awarded  upon  an  applica- 
tion pursuant  to  this  section. 

Sec.  538.  A  sham  answer  or  a  sham  defence  may  be  stricken 
out  by  the  court,  upon  motion,  .and  upon  such  terms  as  the  court 
deems  just.  /  a'"  .^"^  ?■■''-^^'^S''0 

Sec.  545.  Irrelevant,  Redundant,  or  scandalous  matter,  con- 
tained in  a  pleading,  may  be  stricken  out,  upon  the  motion  of  a 
person  aggrieved  thereby.  .  .  . 

Sec.  546.  Where  one  or  more  denials  or  allegations  contained^ 
in  a  pleading,  are  so  indefinite  or  uncertain  that  the  precise  mean-  \ 
ing  or  application  thereof  is  not  apparent,  the  court  may  require  1 
the  pleading  to  be  made  definite  and  certain,  by  amendment.         .^ 

Sec.  547.  If  either  party  is  entitled  to  judgment  upon  the  plead- 
ings, the  coml  may  upon  motion  at  any  time  after  issue  joined 
give  judgment  accordingly. 


208  PLEADING, 


•r 

rr 


7 


Rules  of  the  Supreme  Court,  1883,  Order  XXV. 

1.  No  demurrer  shall  be  allowed. 

2.  Any  party  shall  be  entitled  to  raise  by  his  pleading  any  point 
of  law,  and  any  point  so  raised  shall  be  disposed  of  by  the  judge  who 
tries  the  cause  at  or  after  the  trial,  provided  that  by  consent  of  the 
parties,  or  by  order  of  the  court  or  a  judge  on  the  application  of 
either  party,  the  same  may  be  set  down  for  hearing  and  disposed  of 
at  any  time  before  the  trial. 

3.  If,  in  the  opinion  of  the  court  or  a  judge,  the  decision  of  such 
point  of  law  substantially  disposes  of  the  whole  action,  or  of  any  dis- 
tinct cause  of  action,  ground  of  defence,  set-off,  counterclaim,  or 
reply  therein,  the  court  or  judge  may  thereupon  dismiss  the  action 
or  make  such  other  order  therein  as  may  be  just. 

4.  The  court  or  a  judge  may  order  any  pleading  to  be  struck  out, 
on  the  ground  that  it  discloses  no  reasonable  cause  of  action  or 
answer,  and  in  any  such  case  or  in  case  of  the  action  or  defence  being 
shown  by  the  pleadings  to  be  frivolous  or  vexatious,  the  court  or  a 
judge  may  order  the  action  to  be  stayed  or  dismissed,  or  judgment 
to  be  entered  accordingly,  as  may  be  just. 


^'^l 

/7-]/    .''*' 


/       SMITH  ei  al   v.   SUMMERFIELD  et  al. 


'y 


.  Supreme  Court  of  North  Carolina.     1891.    a  i/^'  J 

[Reported  108  North  Carolina,  284.] 

*  Shepherd,  J.^  .  .  .     The  third  and  fourth  grounds  of  demurrer 

are  untenable.  A  demurrer  does  not  lie  except  in  the  cases  specif- 
ically mentioned  in  section  239  of  The  Code.  Dunn  v.  Barnes,  73 
N.  C,  273.  Redundancy  and  impertinence  in  pleading  must  be 
objected  to  by  way  of  motion  before  answer  or  demurrer  (Best  v. 
Clyde,  86  N.  C,  4),  and  the  same  is  true  as  to  argumentativeness, 
"  indefiniteness  or  uncertainty,  unless  the  uncertainty  be  such  as 
to  state  no  cause  of  action."     Boone  Code  PI.,  54,  146.^  .  .  . 

^  Only  a  part  of  the  opinion  of  the  court  is  given.  —  Ed. 

2  See  Union  Bank  v.  Bell,  14  Oh.  St.  200. 

Under  the  codes  duplicity  is  not  a  ground  of  demurrer  or  motion  to  strike 
out.  The  remedy  is  by  motion  to  compel  the  party  to  separate  his  causes  of 
action  or  defense.     Hendry  v.  Hendry,  32  Ind.  349. 

So  as  to  all  defects  of  form,  a  motion  and  not  a  demurrer  is,  under  the  codes, 
the  proper  remedy.  Pomeroy,  Code  Remedies,  4th  ed.,  pp.  595  et  seq.,  708 
et  seq.  In  Morse  v.  Oilman,  10  Wis.  504,  p.  507,  the  court  said:  "  A  complaint 
to  be  overthrown  by  a  demurrer  or  objection  to  evidence,  must  be  wholly  in- 


FORMS  209 

[Form  of  Notice  of  Motion  that  Complaint  be  made  Definite 
and  Certain.] 
Supreme  Court  of  the  State  of  New  York, 
Count}'  of  New  York, 
A.  B.,  Plaintiff,       1 

against  \      Notice  of  Motion 

C.  D.,  Defendant.  J 
Sir: 

Please  take  notice,  that  on  the  complaint  herein,  the  under- 
signed will  move  this  court  at  a  Special  Term,  Part  I,  thereof,  to  be 

held  in  the  Count}^  Court  House  in  New  York  County  on , 

19 ,  at  10 :30  o'clock  in  the  forenoon  of  said  day,  or  as  soon  there- 
after as  counsel  may  be  heard,  for  an  order 

1.  Directing  that  the  complaint  be  made  definite  and  certain  by 
amendment  so  as  to  {Here  state  in  what  respects  the  complaint  should 
be  ameyided) ;  and 

2.  Granting  to  the  defendant  such  other  and  further  relief  as 
may  be  just. 

Dated, ,  19 

Yours,  &c., 

X.  Y.,  Attorney  for  Defendant. 
(Address) 
To  V.  W.,  Esq.,  Attorney  for  Plaintiff. 

[Form  of  Order.] 
At  a  Special  Term,  Part  I  thereof,  of  the  Su- 
preme Court  of  the  State  of  New  York,  held  in  the 
courtroom  thereof  in  the  County  Court  House, 

New  York  County,  on  the day  of ,  19 

Present: 

Hon.  E.  C.  C, 

Justice. 
A.  B.,  Plaintiff,       ] 

against 
CD.,  Defendant. 

sufficient.  If  in  any  portion  of  it,  or  to  any  extent,  it  presents  facts  sufficient 
to  constitute  a  cause  of  action,  or  if  a  good  cause  of  action  can  be  gathered 
from  it,  it  will  stand,  however  inartificially  these  facts  may  be  presented, 
or  however  defective,  uncertain  or  redundant  may  be  the  mode  of  their  state- 
ment. Contrary  to  the  common  law  rule,  every  reasonable  intendment  and 
presumption  is  to  be  made  in  favor  of  the  pleading,  and  it  will  not  be  set  aside 
on  demurrer  unless  it  be  so  fatally  defective,  that,  taking  all  the  facts  to  be 
admitted,  the  court  can  say  they  furn=sh  no  cause  of  action  whatever,"  —  Ed. 


210  PLEADING 

On  reading  and  filing  the  notice  of  motion  herein,  dated , 

19 ,  and  the  complaint  herein,  verified ,  19 ,  and  after 

hearing  X.  Y.,  Esq.,  counsel  for  the  defendant,  in  support  of  the 
motion,  and  V.  W.,  Esq.,  counsel  for  the  plaintiff,  in  opposition 
thereto,  it  is,  on  motion  of  X.  Y.,  attorney  for  the  defendant. 

Ordered  that  the  said  motion  be  and  the  same  hereby  is 
granted,  with  ten  dollars  costs  to  the  defendant,  and  the  plaintiff  is 
hereby  directed  to  serve,  within  twenty  days  after  the  service 
upon  his  attorneys  of  a  copy  of  this  order  with  notice  of  entry,  an 
amended  complaint  which  shall  {Here  state  in  what  respects  the 
complaint  should  be  amended). 

Enter: 

E.  C.  C. 

J.  S.  C. 


l 


LEE  V.   MINNEAPOLIS   &   ST.   LOUIS   RAILWAY 
COMPANY. 

Supreme  Court  of  Minnesota.     1885. 

[Reported  34  Minnesota,  225.] 

Mitchell,  J.  This  appeal  is  from  an  order  denying  a  motion  to 
make  the  complaint  more  definite  and  certain.  The  action  was  for 
damages  caused  by  the  alleged  negligence  of  defendant  in  leaving 
exposed  and  unguarded  in  its  yard  at  Albert  Lea  a  receptacle  for 
boiling  water,  into  which,  on  the  24th  day  of  November,  1883,  the 
plaintifT  fell,  while  he  "  was  lawfully  upon  said  premises  by  the  in- 
vitation of  the  defendant,  having  been  invited  there  by  said  defend- 
ant to  obtain  employment."  This  the  defendant  asked  to  have 
made  more  definite  and  certain  by  stating  how  said  invitation  was 
extended  to  the  plaintiff,  and  the  name  and  occupation  of  the  per- 
son or  agent  representing  the  defendant  who  extended  it.  In  an 
affidavit  presented  by  the  defendant  it  was  stated,  as  a  reason  for 
making  the  motion,  that  for  the  past  two  years  there  had  been 
employed  in  and  about  the  premises  referred  to  an  average  of 
more  than  40  men  daily;  that  such  employes  were  constantly 
changing,  many  going  away  and  others  taking  their  places;  and 
that  it  was  utterly  impossible  for  defendant  to  know  or  ascertain 
who  the  person  was  upon  whose  invitation  the  plaintiff  relies.  No 
point  is  made  that  there  is  any  uncertainty  as  to  whether  the 
pleader  intended  to  allege  an  express  invitation,  or  merely  a  license 
to  enter.     Defendant  construes  it  to  be  the  former,  and  what  he 


OLSEN    V.    CLOQUET   LUMBER    COMPANY  211 

complains  of  is  that  the  pleading  does  not  allege  the  name  or 
occupation  of  the  agent  who  gave  the  invitation. 

The  uncertainty  is  not  as  to  what  the  complaint  alleges,  but  as  to 
the  particular  evidence  which  plaintiff  will  produce  to  sustain  it. 
But  we  apprehend  that  the  indefiniteness  or  uncertainty  to  be  re- 
lieved against  on  motion  is  only  such  as  appears  on  the  face  of  the 
pleading  itself,  and  not  an  uncertainty  arising  from  some  extrinsic 
facts  as  to  what  evidence  will  be  produced  to  support  it.  This  lat- 
ter uncertainty  is  incident  to  all  litigation,  and  is  one  against  which 
the  law  cannot  provide  except  to  say  that  the  proof  must  corres- 
sppnd  with  the  allegations.  It  might  be  convenient  for  defendant 
to  be  informed  of  the  name  of  the  alleged  agent  who  extended  this 
invitation,  but  to  recjuire  it  to  be  stated  in  the  complaint  would  be 
to  establish  a  novel  rule  of  pleacUng.  What  a  person  does  by  an- 
other he  does  himself,  and  things  may  be  pleaded  according  to 
their  legal  effect  and  operation,  and  it  was  perfectly  good  pleading 
to  allege  that  the  plaintiff  was  invited  upon  the  premises  "  by 
defendant."      ^  ,  y  /  •       >-  z?         Order  affirmed. 


^    ^^4-4-*-^--^  ^  ^z^^>r 


/    OLSEN  V.   CLOQUET  LUMBER   COMPANY  and 

Another. 

Supreme  Court  of  Minnesota.     1895.  i/k/'^'^' 

[Reported  61  Minnesota,  17.) 

The  complaint  alleged  in  substance  that  at  the  times  mentioned 
defendant  company  was  a  corporation  and  defendant  George  S. 
Shaw  was  its  president  and  general  manager;  that  on  April  5, 
1893,  plaintiff  with  her  husband  and  their  child  was  occupying  a 
dwelling  house  which  constituted  plaintiff's  homestead,  and  had 
been  occupjdng  it  for  more  than  six  j^ears;  that  on  said  day  de- 
fendant corporation  and  defendant  Shaw,  acting  in  his  said  capac- 
ity, did  by  its  and  his  employes  and  servants,  acting  under  its  and 
his  direction,  wTongfully  and  willfully,  and  in  gross  disregard  of 
plaintiff's  rights,  attack  said  dwelling  house,  tear  dowTi  and  de- 
stroy a  large  portion  thereof  and  render  it  uninhabitable;  that  by 
reason  of  said  attack  plaintiff  was  rendered  temporarily  insane 
and  had  ever  since  sickened  and  suffered  from  the  effects  of  the 
nervous  shock  occasioned  by  said  attack,  and  was  sick  and  in  bed 
under  the  care  of  physicians  and  nurses,  and  that  by  reason  of  the 
premises  she  had  been  damaged  in  the  sum  of  .$5000. 


212  PLEADING 

Start,  C.  J.  Appeal  from  orders  striking  out  the  separate  de- 
murrer of  each  defendant  to  the  plaintiff's  complaint  as  frivolous. 
/A  demurrer  should  not  be  struck  out  as  frivolous  unless  it  is  man- 
I  if  est,  without  argument,  from  a  mere  inspection  of  the  pleading, 
[that  there  was  no  reasonable  ground  for  interposing  it.  It  should 
not  be  struck  out  where  there  is  such  room  for  debate  as  to  the 
sufficiency  of  the  pleading  demurred  to  that  an  attorney  of  ordi- 
nary intelligence  might  have  interposed  a  demurrer  in  entire  good 
faith.  Hatch  &  Essendrup  Co.  v.  Schusler,  46  Minn.  207,  48  N. 
W.  782.  It  is  far  from  manifest,  from  an  inspection  of  the  com- 
plaint, without  argument,  that  it  states  a  cause  of  action,  so  as 
to  make  the  demurrer  frivolous  within  this  rule;  on  the  contrary, 
after  serious  consideration  of  its  allegations,  we  are  unable  to  agree 
that  it  states  any  cause  of  action.  It  states  no  cause  of  action  for 
damages  on  account  of  personal  injuries  to  the  plaintiff,  for  it  is  not 
alleged  that  she  was  in  or  near  the  house  when  the  attack  was  made 
upon  it.  A  majority  of  the  court  are  of  the  opinion  that  a  cause  of 
action  for  nominal  damages  to  the  plaintiff's  homestead  may  be 
spelled  out  of  it.  Clearly  the  demurrers  were  not  frivolous. 
'  Orders  reversed.^ 


hf  I     WHITE  V.   MOQUIST. 

•^  \  Supreme  Court  of  Minnesota.     1895. 

n    ffw  [Reported  61  Minnesota,  103.] 

{<  ^  Mitchell,  J.      The  allegations  of  the  complaint  were  that 

plaintiff  leased  certain  premises  to  defendant  for  a  year,  at  an 
agreed  rent  of  .|200,  payable  one-half  May  15,  1894,  and  the  other 
half  August  15,  1894,  and  that  defendant  has  only  paid  $90.  Judg- 
ment was  asked  for  $110.  The  defendant,  in  his  answer,  denied 
that  there  was  any  greater  sum  than  $85  due  plaintiff  for  rent,  and 
alleged  that  "  plaintiff  has  been  paid  in  cash  and  other  personal 
property,  consisting  of  hay,  in  the  aggregate  the  sum  of  $115." 
This  answer  was  verified  by  defendant's  attorney.  The  answer 
was,  on  motion  of  plaintiff,  stricken  out  as  sham.  In  support  of 
his  motion,  plaintiff  made  an  affidavit  that  all  the  cash  defendant 
had  paid  was  $90,  which  was  paid  on  the  first  instalment  of  rent; 
that  the  only  facts  relating  to  the  payment  of  hay  were  that,  in 
the  latter  part  of  June,  plaintiff,  with  the  permission  of  defendant, 

1  See  6  Encyc.  of  Pi.  and  Pr.  385.  —  Ed. 


HENEY   V.    CHARTERED    CO.    OF   LOWER    CALIFORNIA  213 

cut  some  hay  growing  on  the  street  in  front  of  the  leased  prem- 
ises; that  the  amount  thus  cut  did  not  exceed  1,500  pounds,  and 
was  not  worth  to  exceed  S3;  that  plaintiff  never  promised  to  pay- 
defendant  anji^hing  therefor,  and  that  defendant  never  made  any 
demand  or  claim  on  account  of  the  same  until  after  the  second  in- 
stalment of  rent  was  due;  that  plaintiff  never  received  from  de- 
fendant an}'  other  cash  or  personal  property  except  as  above  stated. 
The  defendant  presented  no  counter  affidavits. 

While  a  court  should  be  exceedingly  careful  not  to  strike  out  a 
pleading  as  sham  except  where  its  falsity  is  clearly  established, 
yet,  upon  the  showing  made  in  this  case,  we  think  the  court  was 
justified  in  striking  out  this  answer.  Its  allegations  as  to  how 
payment  had  been  made  —  how  much  in  cash,  and  how  much  in 
hay  —  were  exceedingly  indefinite,  and  apparently  evasive.  The 
pleading  was  verified  by  the  attorney,  who  may  have  had  no  per- 
sonal knowledge  of  the  facts.  To  plaintiff's  affidavit,  the  contents 
of  which  were  quite  minute  and  specific,  the  defendant  interposed 
neither  denial  nor  explanation.  As  was  suggested  in  Van  Loon  v. 
Griffin,  34  Minn.  444,  26  N.  W.  601,  it  would  be  imposing  no  great 
hardship  on  defendant  to  require  him  to  explain  or  dispute  plain- 
tiff's statements,  and,  if  he  omits  to  do  so,  to  take  them  as  true. 

Order  affirmed.^ 


j   HENEY  V.   CHARTERED   COMPANY  OF  LOWER 
•^  CALIF0RNL4. 

Supreme  Court  of  New  York,  Special  Term.     1911. 

[Reported  71  Miscellaneous  Reports,  237.] 

Lehman,  J.  The  complaint  alleges  that  the  plaintiff  is  a  resident 
of  the  State  of  New  York  and  that  the  defendant  is  a  foreign  cor- 
poration organized  under  the  laws  of  the  State  of  Maine.  The 
defendant  demurs  to  the  complaint  on  the  grounds  that  the  court 
has  not  jurisdiction  of  the  person  of  the  defendant  and  that  the 
court  ha^  not  jurisdiction  of  the  subject  of  the  action. 

1  See  Wayland  v.  Tysen,  45  N.  Y.  281. 

An  answer  will  not  be  held  frivolous,  unless  it  is  "  so  clearly  and  palpably 
bad  as  to  require  no  argument  or  illustration  to  show  its  character."  Hull  v 
Carter,  83  N.  C.  249. 

The  power  to  strike  out  or  give  judgment  upon  pleadings  as  sham  or  frivo- 
lous exists  independently  of  statute.  State  ]Mutual  B.  &  L.  Ass'n  v.  Williams 
78  N.  J.  L.  720,  75  Atl.  927.  —  Ed. 


214  PLEADING 

There  can  be  no  doubt  that  the  court  has  jurisdiction  of  the  sub- 
ject of  the  action  under  section  1780  of  the  Code.  The  arguments 
of  the  defendant  are  directed  solely  to  the  ground  that  the  court  has 
no  jurisdiction  of  the  person  of  the  defendant.  In  the  case  of 
Nones  v.  Hope  Mutual  Life  Ins.  Co.,  8  Barb.  541  (  see  5  How.  Pr, 
96),  it  was  held  that  "  the  meaning  of  the  clause  '  that  the  court 
has  no  jurisdiction  of  the  person  '  is  that  the  person  is  not  subject 
to  the  jurisdiction  of  the  court  and  not  ttiat  the  suit  has  not  been 
regularly  commenced,"  and  that,  therefore,  a  defendant  foreign 
corporation  cannot  by  demurrer  raise  the  objection  that  the  sum- 
mons was  not  properly  served  on  it.  This  case  was  cited  and 
j,pprovecl  in  the  case  of  Ogdensburgh  R.  R.  Co.  v.  Vermont  R.  R. 
Co.,  16  Abb.  Pr.  249;  and  that  case,  although  only  a  Special  Term 
decision,  was  approved  in  the  case  of  Belden  v.  Wilkinson,  44  App. 
Div.  420.  Since  the  defendant  is  in  this  case  really  raising  only 
the  issue  that  it  has  not  been  properly  served,  it  would  appear 
beyond  question  that  the  demurrer  is  not  the  appropriate  remedy 
and  should  be  overruled,  were  it  not  that  the  case  of  Ogdensburgh 
R.  R.  Co.  V.  Vermont  R.  R.  Co.  decided  that  a  foreign  corporation 
cannot  be  cited  to  appear  in  the  courts  of  this  State ;  and  that  the 
court  can  obtain  no  jurisdiction  to  render  a  personal  judgment, 
except  by  voluntary  appearance,  and  such  a  corporation  is,  there- 
fore, not  subject  to  the  jurisdiction  of  the  court,  except  as  to  prop- 
erty within  the  State;  and  that  the  objection  to  the  jurisdiction 
may,  therefore,  be  raised  by  demurrer.  That  case  was  decided  in 
1874;  and  thereafter  the  Court  of  Appeals  decided,  in  the  case  of 
Gibbs  V.  Queens  Fire  Insurance  Co.,  63  N.  Y.  114,  that  the  Code 
had  changed  the  common-law  rule,  and  that  a  foreign  corporation 
was  subject  to  the  general  jurisdiction  of  the  court  where  personal 
service  was  made  as  directed  in  the  Code.  In  the  case  of  Pope  v. 
Terre  Haute  Manufacturing  Co.,  87  N.  Y.  137,  139,  it  was  held  that 
"It  is  undisputed  that  foreign  corporations  may  be  sued  in  this 
State,  section  1780  of  the  Code  of  Civil  Procedure,  providing  that 
'  an  action  against  a  foreign  corporation  may  be  maintained  by  a 
resident  of  the  State,  or  by  a  domestic  corporation,  for  any  cause 
of  action.'  It  has  never  been  doubted  that  the  legislature  could 
constitutionally  authorize  the  commencement  of  such  an  action." 
The  conflict  of  decisions  between  our  courts  and  the  Federal  courts 
is  not  over  the  question  of  whether  a  foreign  corporation  is  subject 
to  the  jurisdiction  of  the  court,  but  only  on  the  question  of  the 
validity  of  attempted  service.  See  Grant  v.  Cananea  Con.  Copper 
Co.,  189  N.  Y.  241. 


LOAN  &  TRUST  SAVINGS  BANK  V.    STODDARD        215 

Demurrer  should  be  overruled,  mth  leave  to  the  defendant  to 
answer  -wdthin  twenty  days  after  notice  of  entry  of  the  inter- 
locutory judgment.  Demurrer  overruled} 


aM^ 


LOAN   &   TRUST  SAVINGS   BANK   v.   STODDARD  e<  aL, 

Inpleaded  with  HOLCOMB   BROS,  e^  aL  L^\    ^' 

Supreme  Court  of  Nebraska.     1902.        /  ,    jji      pt7 

[Reported  2  Nebraska,  Unofficial,  486.]        ^^..^  >''   V   /^ 

Day,  C.^  .  .  .  At  the  commencement  oTtTietrial  the  appellants 
objected  to  the  introduction  of  any  testimony  in  the  case  on  behalf 
of  the  plaintiff  for  the  reason  that  the  petition  did  not  state  a. 
cause  of  action,  and  for  the  further  reason  that  no  legal  capacity 
was  shown  in  the  plaintiff  to  maintain  the  suit.  The  point  urged 
is  that  there  was  no  allegation  of  the  corporate  capacity  of  the 
plaintiff.  In  Angel  and  Ames,  Corporations,  section  632,  it  is 
said:  "  It  is,  however,  generally  admitted,  that  a  corporation  may 
declare  in  its  corporate  name,  without  setting  forth  in  the  declara- 
tion the  act  of  incorporation,  or  averring  that  it  is  a  corporation, 
if  the  act  be  private."  At  common  law  a  corporation  may  sue 
and  be  sued  in  its  corporate  name,  wdthout  an  averment  of  its 
corporate  capacity,  and  the  provisions  of  our  Code  have  not 
changed  the  common  law  rule  in  that  regard.  Exchange  National 
Bank  v.  Capps,  32  Neb.,  242.  In  Holden  v.  Great  Western  Ele- 
vator Co.,  72  N.  W.  Rep.  [Minn.],  805,  it  is  held:  "  In  an  action  by 
or  against  a  corporation  it  is  not  necessary  to  allege  that  it  is  a 
corporation,  except  in  cases  where  the  fact  of  corporate  existence 
enters  into,  and  constitutes  a  part  of,  the  cause  of  action  itself." 
Stanley  v.  Richmond  &  D.  R.  Co.,  89  N.  Car.,  331. 

'  On  the  question  of  jurisdiction  of  the  subject  of  the  action,  see  Bruheim  v. 
Stratton,  145  Wis.  271,  129  N.  W.  1092,  supra,  p.  105. 

In  Doll  V.  Feller,  IG  Cal.  432,  4.3.3,  the  court  said:  "A  demurrer  to  the 
jurisdiction  of  the  Court  only  lies  where  the  want  of  such  jurisdiction  appears 
affirmatively  upon  the  face  of  the  complaint.  In  a  Court  of  limited  and  special 
jurisdiction,  the  rule  is  otherwise;  there,  every  fact  essential  to  confer  the  '\ 
jurisdiction  must  be  alleged.  In  Courts  of  general  jurisdiction  the  cause  of 
action  need  only  be  stated,  and  the  want  of  jurisdiction,  arising  from  the  in- 
sufficient value  of  the  premises,  must  be  taken  advantage  of  in  some  other 
way."  —  Ed. 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


216  PLEADING 

The  decree  rendered  by  the  trial  court  is  fully  sustained  by  the 
proofs.  We  therefore  recommend  that  the  judgment  of  the  dis- 
trict court  be  affirmed. 

Hastings  and  Kirkpatrick,  C.C,  concur.  Affirmed.^ 

HoLCOMB,  J.,  took  no  part  in  the  decision. 


/- 


BENNETT  v.   PRESTON   and  Others. 

Supreme  Court  of  Indiana.     1861. 

[Reported  17  Indiana,  291.] 

Perkins,  J.  James  H.  Bennett  sues  William  R.  Preston  and 
others,  and  charges  in  his  complaint  that  he  was  indebted  to  divers 
persons  in  a  fraction  over  $3000;  and  that  being  unable  to  pay  the 
debts  at  maturity,  but  having  plenty  of  property  to  secure  them, 
he  did,  on  November  14,  1857,  assign  to  said  William  R.  Preston, 
and  certain  others  named,  his  real  and  personal  property,  of  the 
value  of  near  $5000,  making  them  a  title  to,  and  putting  them  in 
possession  of,  the  same,  to  be  used  by  them  for  the  payment  of  the 
above  mentioned  debts. 

He  further  charges,  that  for  three  years  the  assignees  have  con- 
tinued in  possession  of  the  trust  committed  to  them ;  that  they  have 
neglected  their  duty;  that  they  have  wasted  and  sacrificed  the 
personal  property,  or  converted  it  to  their  own  use;  that  they  have 
suffered  solvent  choses  in  action  to  remain  uncollected  till  lost; 
that  they  have  used  the  real  estate  for  their  own  private  conven- 
ience and  profit,  &c.;  and,  if  they  have  paid  the  debts,  have 
wasted,  and  are  wasting,  the  surplus,  &c.  He  further  charges, 
that  he  has  demanded  an  accounting  and  settlement,  and  the  pay- 
ment over  to  him  of  $2500,  which  sum  should  remain  in  their  hands 
after  payment  of  all  debts  and  expenses.  He  prays  for  a  judgment 
against  the  assignees  for  that  sum,  "  and  for  other  proper  relief." 
He  makes  the  creditors  provided  for  in  the  deed  of  assignment 
defendants,  with  the  assignees,  and  the  deed  of  assignment  is  set 
out  in  the  complaint.  He  adds  a  second  paragraph  to  his  com- 
plaint, upon  a  separate  cause  of  action,  for  work  and  labor,  &c. 

1  See  Phoenix  Bank  v.  Donnell,  40  N.  Y.  410;  Cheraw  &  Chester  R.  R.  Co. 
V.  White,  14  S.  C.  51;  Central  Bank  of  Wis.  v.  Knowlton,  12  Wis.  624. 

It  is  clear  that  an  allegation  of  the  plaintiff's  corporate  existence  is  sufficient 
without  any  allegation  of  its  corporate  power  to  sue.  Northrup  v.  Wills,  6.5 
Kan.  7G9,  70  Pac.  879;  Smith  v.  Weed  Sewing  Machine  Co.,  26  Oh.  St.  562; 
Cone  Co.  v.  Poole,  41  S.  C.  70,  19  S.  E.  203,  24  L.  R.  A.  289;  Crane  Brothers 
Mfg.  Co.  V.  Reed,  3  Utah,  506,  24  Pac.  1056.  —  Ed. 


^- 


HARRIS   V.    AVERY  217 

The  Court  below  sustained  a  joint  demurrer,  by  all  the  defend- 
ants, to  the  complaint,  and  dismissed  the  suit.  ^  ^^ 

Three  causes  of  demurrer  were  assigned:  1.  Want  of  sufficient  -'*'***"  .  i 
facts  to  constitute  a  cause  of  action.  2.  Misjoinder  of  causes  of  i^c^  l/VU^^ 
action.  3.  Misjoinder  of  parties  defendants,  in  this,  that  there  /^^•^^'i-4^ 
were  too  many  defendants.^     The  third  cause  of  demurrer  was  not  JJ       ^ 

well  assigned.  It  was  not  available.  Defect  of  parties,  under  the  ^  hi'^V 
Code,  as  a  cause  of  demurrer,  means  too  f_ew,  not  too  many  parties;  -  ij  f  "^j  /• 
and  a  demurrer  bad  in  part,  is  bad  altogether.  Voorhies'  Code,  ^v*^/S-*-v*'^ 
6  ed.  p.  iMTlnd.  Dig.,  p.  650.     The  demurrer  in  this  case  was  aJ  ^/JL 

bad,  in  part,  because  if  "  a  complaint  state  a  cause  of  action  against  /       . 

one  or  more  of  several  defendants,  a  joint  demurrer  by  all  the  iX^(yfr^^ 
defendants,  on  the  ground  that  the  complaint  does  not  state  facts   ^3^^  ^Jiil 
sufficient,  or  for  defect  of  parties,  cannot  be  sustained.     But  the  '-♦■^  r    t 

defendants  against  whom  no  cause  of  action  is  stated,  may  demur  ^-Uy^^jtXJJt  -<4 
on  that  ground,  separately."  Eldridge  v.  Bell,  12  How.  (N.  Y.)  y> -X^_-«^Zl^»-* 
Rep.  549;  id.  1756;  8  id.  392;  2  Abb.  402;  Voorhies'  Code,  6  ed.  ^^■^y"-"-'"*-^ 
196.  Or  they  may  be  discharged  on  the  trial.  Draper  v.  Vanhorn,  ^^^^^^Cl^M^*^ 
15  Ind.  155.  ... 

Fer  Curiam.      The  judgment  is  reversed,  with  costs.      Cause 
remanded  for  further  proceedings,  with  leave  to  amend,  &c.2 


ru^n.^t'--^'-^^^ 


I.   HARRIS   V.   AVERY. 

Supreme  Court  of  Kansas.     1869. 

[Reported  5  Kansas,  146.] 

By  the  Court,  Valentine,  J.  This  action  was  brought  in  the 
court  below  by  Avery,  as  plaintiff.  The  petition  states  two  causes 
of  action  —  false  imprisonment  and  slander  —  and  alleges  that 

•  Only  that  part  of  the  opinion  of  the  court  which  relates  to  the  third  ground 
of  demurrer  is  here  given.  —  Ed. 

2  See  Ames,  Cases  on  Pleading,  ed.  of  1905,  p.  135;  15  Encyc.  of  PI.  and 
Pr.  762. 

In  some  states  the  codes  allow  misjoinder  of  defendants  as  a  ground  of 
demurrer.  But  even  in  some  of  those  states  the  parties  properly  joined  can- 
not object  to  the  misjoinder.  Gardner  v.  Samuels,  116  Cal.  84,  47  Pac.  935; 
Pomeroy,  Code  Remedies,  4th  ed.,  p.  275. 

Compare  the  English  rule.  Rules  of  the  Supreme  Court,  1883,  Order  XVI, 
rules  11-13,  supra,  p.  166;  and  the  New  Jersey  rule,  New  Jersey  Practice 
Act  (1912),  sec.  9,  supra,  p.  170. 

At  common  law  in  actions  ex  contractu  any  or  all  of  the  defendants  may  on 
a  general  demurrer  take  advantage  of  a  misjoinder  of  defendants  apparent  in 


218  PLEADING 

both  arose  out  of  the  same  transaction.  Harris  demurred  to  this 
petition,  on  the  ground  "  that  it  appears  on  the  face  of  the  petition, 
that  several  causes  of  action  are  improperly  joined."  The  district 
court  overruled  the  demurrer,  and  this  ruling  is  assigned  as  error. 

The  petition  shows  that  the  two  causes  of  action  are  founded 
upon  the  following  facts.  Harris  met  Avery  m  the  city  of  Fort 
Scott,  and  in  the  presence  of  several  other  persons  called  Avery  a 
thief;  said  he  had  a  stolen  horse;  took  the  horse  from  Avery,  and 
kept  the  horse  four  or  five  days;  arrested  Avery  and  confined  him 
in  the  county  jail  with  felons  four  or  five  days. 

We  think  these  facts  as  detailed  in  the  petition  constitute  only 
one  transaction,  [Brewer  v.  Temple,  15  Howard  Pr.  R.,  286];  and 
whether  they  constitute  more  than  one  cause  of  action,  under  our 
code  practice,  may  be  questionable.  Under  the  authority  we  have 
referred  to  they  would  not.  But  as  we  have  not  been  asked  to 
decide  the  latter  question,  we  ^vill  pass  it  over  and  treat  the  case 
as  though  the  facts  stated  constitute  two  causes  of  action. 

Section  89  of  the  code  [Comp.  Laws,  138],  provides  "that  the 
plaintiff  may  unite- several  causes  of  action  in  the  same  petition, 
whether  they  be  such  as  have  heretofore  been  denominated  legal 
or  equitable,  or  both,  when  they  are  included  in  either  one  of  the 
following  classes:  First,  the  same  transaction  or  transactions  con- 
nected with  the  same  subject  of  action." 

This  differs  in  many  respects  from  the  common  law  rule.  At 
common  law  "  where  the  same  form  of  action  may  be  adopted  for 
several  distinct  injuries,  the  plaintiff  may,  in  general,  proceed  for 
all  in  one  action,  though  the  several  rights  effected  were  derived 
from  different  titles,"  [1  Chitty's  PL,  201;  Tidd's  Pr.,  11],  and  dif- 
ferent forms  of  action  may  be  united  "  where  the  same  plea  may  be 
pleaded  and  the  same  judgment  given  on  all  the  counts  of  the 
declaration,  or  whenever  the  counts  are  of  the  same  nature,  and 
the  same  judgment  is  to  be  given  on  them  although  the  pleas  be 
different."     1  Chitty's  PI.,  200. 

In  the  action  at  bar,  if  Harris  had  arrested  Avery  on  a  warrant, 
which  Harris  had  maliciously  and  without  probable  cause  obtained 
from  a  court  of  competent  jurisdiction,  and  had  also  converted 
the  horse  to  his  own  use,  then  at  common  law,  Avery  would  have 
had  three  distinct  causes  of  action,  which  he  could  unite  in  one 
suit  —  first,  an  action  for  the  false  imprisonment  or  malicious 

the  declaration.  Cunningham  v.  Town  of  Orange,  74  Vt.  115,  52  Atl.  269;  1 
Chitty,  Pleading,  16th  Am.  ed.,  *51;  Dicey,  Parties,  506.  As  to  actions  ex 
delicto,  sec  1  Chitty,  Pleading,  16th  Am.  ed.,  *  97;  Dicey,  Parties,  508.  —  Ed. 


HARRIS    V.    AVERY  219 

prosecution;  second,  an  action  of  slander  for  the  words  spoken, 
and  third,  an  action  of  trover  for  the  conversion  of  the  horse. 
These  may  all  be  united  in  an  action  on  the  case  [1  Chitty's  PL, 
133,  134,  146;  1  Tidd's  Pr.,  5];  trover  being  a  species  of  case. 
Avery  might,  also,  at  common  law,  unite  with  these  causes  of 
action  as  many  other  causes  of  action  as  he  might  have,  for  mali- 
cious prosecution,  slander,  trover,  criminal  conversation,  nuisance, 
and  other  causes  of  action  which  may  be  sued  in  an  action  on  the 
case,  and  although  they  each  may  have  arisen  out  of  a  different 
transaction,  and  at  a  different  time,  and  in  a  different  place. 

But  if  Harris  arrested  Avery  ^\dthout  any  process  —  which  was 
the  fact  in  this  case  —  and  in  an  entirely  irregular  manner,  then 
the  two  causes  of  action  for  false  imprisomnent  and  slander  could 
not  at  common  law  be  united,  as  the  first  would  have  to  be  sued 
in  an  action  of  trespass  and  the  second  in  an  action  on  the  case,  and 
it  would  make  no  difference  whether  they  both  arose  out  of  the 
same  transaction  or  not. 

Our  code  has  abolished  all  the  common  law  forms  of  action,  and 
has  established  a  system  for  the  joinder  of  actions,  — more  philo- 
sophical, and  complete  ^nthin  itself.  It  follows  the  rules  of  equity 
more  closely  than  it  does  those  of  the  common  law,  one  object 
seeming  to  be  to  avoid  the  multiplicity  of  suits,  and  to  settle  in  one 
action,  as  equity  chd,  as  far  as  practicable,  the  whole  subject  mat- 
ter of  a  controversy.  Hence  the  common  law  on  this  question  is  no 
criterion.  It  is  probably  true  that  the  two  causes  of  action  for 
false  imprisonment  and  slander  cannot,  under  our  code,  be  united, 
unless  both  arise  out  of  the  same  transaction,  one  being  an  injury 
to  the  person  and  the  other  being  an  injury  to  the  character;  but 
we  do  not  know  of  any  reason  why  they  should  not  be  united  when 
both  do  arise  out  of  the  same  transaction. 

It  is  claimed  by  counsel  for  plaintiff  in  error  that  the  earlier 
reports  of  the  New  York  code  are  against  this  view  of  the  case.  He 
refers  to  8  Howard's  Pr.  R.,  59,  73;  9  Howard's  Pr.  R.,  113;  1 
Duer,  629.  We  think  it  questionable  whether  these  cases  sustain 
the  counsel's  views;  but  if  they  do,  the  later  decisions  under  the 
same  code  are  squarely  against  him.  See  Brewer  v.  Temple,  15 
Howard's  Pr.  R.,  286;  Robinson  v.  Flint,  16  Howard's  Pr.  R.,  240. 
In  the  latter  case  the  court,  as  we  think,  expresses  the  true  rule. 
They  say  "  that  the  plaintiff  may  unite,  first,  as  many  legal  causes 
of  action  as  he  pleases  arising  out  of  the  same  transaction;  second, 
as  many  equitable  causes  of  action  as  he  pleases  arising  out  of  the 
same  transaction;    third,  as  many  legal  and  equitable  causes  of 


220 


1/ 


PLEADING 


action  as  he  pleases  arising  out  of  the  same  transaction;  fourth,  as 
many  causes  of  action  as  he  pleases  arising  out  of  different  trans- 
actions connected  with  the  subject  of  the  action." 

The  order  of  the  district  court  overruling  the  demurrer  to  the 
petition  is  affirmed. 

All  the  justices  concurring.^ 

General  Statutes  of  Kansas,  1909. 

Sec.  5681.  The  plaintiff  may  unite  several  causes  of  action 
in  the  same  petition,  whether  they  be  such  as  have  been  heretofore 
denominated  legal  or  equitable,  or  both.  But  the  causes  of  action 
so  united  must  affect  all  the  parties  to  the  action,  except  in  actions 
to  enforce  mortgages  or  other  liens.^ 


The  New  Jersey  Practice  Act  (1912). 

Sec.  17.  The  court  may,  under  such  conditions  as  it  may  fix, 
require  any  or  all  motions  preliminary  to  trial  to  be  heard  and 
determined  by  Supreme  Court  Commissioners  designated  by  the 
the  Court,  and  may  fix  their  fees  which  shall  be  costs  in  the  cause. 


Section  II. 


Pleas  or  Answers. 
New  York  Code  of  Civil  Procedure. 

Sec.  500.   The  answer  of  the  defendant  must  contain: 

1.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  controverted  by  the  defendant,  or  of  any  knowledge  or 
information  thereof  sufficient  to  form  a  belief. 

2.  A  statement  of  any  new  matter  constituting  a  defense  or 
counterclaim,  in  ordinary  and  concise  language  without  repetition. 

1  But  see  De  Wolfe  v.  Abraham,  151  N.  Y.  186,  45  N.  E.  455.  —  Ed. 

2  In  England  by  the  Rules  of  the  Supreme  Court,  1883,  Order  XVIII,  rule  1, 
it  is  provided  that  "Subject  to  the  following  Rules  of  this  Order,  the  plaintiff  may 
unite  in  the  same  action  several  causes  of  action;  but  if  it  appear  to  the  Court 
or  a  Judge  that  any  such  causes  of  action  cannot  be  conveniently  tried  or  dis- 
posed of  together,  the  Court  or  Judge  may  order  separate  trials  of  any  of  such 
causes  of  action  to  be  had,  or  may  make  such  other  order  as  may  be  necessary 
or  expedient  for  the  separate  disposal  thereof."  - 


Ed, 


itt?-^'"> 


'-&> 


'^ 


K. 


^irttA 


/4/}t^rtA^€^^  ^^ 


coles  v.  soulsby  221 

Massachusetts  Revised  Laws,  Chapter  173. 

Sec.  24.  The  answer  shall  deny  in  clear  and  precise  terms  every 
substantive  fact  which  is  intended  to  be  denied  in  each  count  of 
the  declaration  separately,  or  it  shall  declare  the  defendant's 
ignorance  of  the  fact,  so  that  he  can  neither  admit  nor  deny  but 
leaves  the  plaintiff  to  prove  the  same. 

Sec.  27.  An  answer  shall  state  clearly  and  precisely  each  sub- 
stantive fact  which  is  intended  to  be  relied  upon  in  avoidance  of  the 
action,  and  if  it  sets  up  the  statute  of  limitations,  the  statute  of 
frauds  or  any  other  legal  bar,  the  defendant  shall  have  the  benefit 
of  such  defence  although  the  answer  does  not  deny  the  facts  set 
forth  in  the  declaration. 


^  COLES  V.   SOULSBY. 
Supreme  Court  of  California.     1862. 
[Reported  21  California,  47.] 

Field,  C.  J.,  delivered  the  opinion  of  the  Court  —  Cope,  J., 
and  Norton,  J.,  concurring. 

This  is  an  action  to  recover  of  the  defendant  the  sum  of  S7890, 
being  the  amount  of  certain  proceeds  received  by  him  from  an 
interest  in  a  quartz  vein  belonging  to  the  plaintiff.  The  interest 
constituted  the  separate  property  of  the  plaintiff,  who  is  a  married 
woman,  and  the  proceeds  were  received  by  the  defendant  previous 
to  her  marriage.  The  complaint  is  special  and  verified,  and  it 
is  admitted  that  on  the  trial  the  plaintiff  proved  her  case  as  it 
is  there  stated.  The  answer,  with  the  exception  of  an  averment 
as  to  an  offset  of  three  hundred  dollars,  amounts  only  to  a  denial  of 
the  allegations  of  the  complaint.  The  defense  upon  which  the 
defendant  relied  on  the  trial  was  an  accord  and  satisfaction.  .  .  . 

[The  plaintiff_ob|ected  to  the  evjdence^f^accord-and-satisfacti 
introduc'ecTby  the  defendant.     His  objection  was  overruled,  and  a 
verdict  and  judgment  passed  for  the  defendant.      The  plaintiff 
appeals.]  ^ 

In  our  practice,  a  denial,  whether  general  or  special,  only  puts  in 
issue  the  allegations  of  the  complaint.  The  difference  between  a 
general  and  special  denial  in  this  respect  is  only  in  the  extent  to 

*  The  statement  of  the  facts  by  the  court  is  abridged  and  parts  of  the 
opinion  are  omitted.  —  Ed. 


tc^ 


^t 


^ 


222 


which  the  allegations  are  traversed.  New  matter  must  be  specially 
pleaded;  and  whatever  admits  that  a  cause  of  action,  as  stated  in 
the  complaint,  once  existed,  but  at  the  same  time  avoids  it  —  that 
is,  shows  that  it  has  ceased  to  exist  —  is  new  matter.  It  is  that 
matter  which  the  defendant  must  affirmatively  establish.  Such 
are  release,  and  accord  and  satisfaction.  Defenses  of  this  char- 
acter must  be  distinctly  set  up  in  the  answer,  or  evidence  to  estab- 
lish them  will  be  inadmissible.  This  view  disposes  of  the  appeal 
and  necessitates  a  reversal  of  the  judgment.  .  .  . 

^   J  Judgrmnt  reversed  and  came  remaryied.^ 

^   MARSHALL-WELLS  HARDWARE   COMPANY  v. 

EMDE. 

Supreme  Court  of  Minnesota.     1913. 

[Reported  121  Minnesota,  524.] 

Action  in  the  district  court  for  Swift  county  to  recover  $1498 
for  certain  goods,  wares  and  merchandise.  The  answer  was  a 
general  denial.  The  case  was  tried  before  Qvale,  J.,  who  directed 
a  verdict  in  favor  of  plaintiff  for  the  amount  demanded.  From  an 
order  denying  defendant's  motion  for  a  new  trial,  he  appealed,. 

Affirmed. 

Per  Curiam.  This  is  an  action  to  recover  the  purchase  price  for 
goods  sold  and  delivered  to  the  Farmers'  Lumber  &  Supply  Com- 
pany, a  copartnership  composed  of  the  defendant  and  one  Small. 
After  the  delivery  of  the  goods,  the  copartnership  was  dissolved  by 
mutual  agreement,  and  the  defendant  took  over  the  business  of  the 
firm,  and,  as  a  part  of  the  transaction,  assumed  and  agreed  to  pay 
the  liabilities  of  the  firm,  including  the  claim  in  suit.  These  facts 
were  not  controverted  on  the  trial.  The  defendant  himself  testified 
that  he  executed  the  written  agreement  whereby  he  assumed  the 
liabilities  of  the  firm,  and  also  that  he  notified  the  wholesale  house 
that  he  had  taken  over  the  business  and  would  pay  and  settle  the 
claim  now  in  suit. 

The  defendant's  answer  was  a  general  denial,  and  nothing  more. 
The  only  defense  that  he  sought  to  present  under  it  was  that  his   / 
copartner.  Small,  and  his  own  attorney,  had  made  certain  mis-  / 
representations  in  the  transactions  attending  the  dissolution  of  the 
copartnership.     The  evidence  proffered  to  support  this  contention 

1  See  Jacotus  v.  Day,  5  N.  Y.  Misc.  410,  25  N.  Y.  Supp.  763,  accord.  —  Ed. 


(y^ 


DODGE   V.   MCMAHAN  223 

was  excluded.  In  excluding  this  evidence  the  trial  court  was 
clearly  correct,  even  if  the  evidence  offered  had  been  sufficient  to 
establish  fraud,  which  is  doubtful.  Where  the  execution  of  an 
instrument  or  the  making  of  a  contract  is  admitted,  and  the 
obligor  seeks  to  avoid  its  effect  on  the  ground  of  fraud,  he  must 
allege  the  facts  constituting  the  fraud.  He  cannot  prove  them 
under  a  general  denial.  Daly  v.  Proetz,  20  Minn.  363  (411); 
Livingston  v.  Ives,  35  Minn.  55,  27  N.  W.  74;  MacFee  v.  Horan, 
40  Minn.  30,  41  N.  W.  239;  Morrill  v.  Little  Falls  Mnfg.  Co.,  53 
Minn.  371,  55  N.  W.  547,  21  L.  R.  A.  174;  Christianson  v.  Chicago, 
St.  P.  M.  &  0.  Ry.  Co.,  61  Minn.  249,  63  N.  W.  639;  Trainor  v. 
Schutz,  98  Minn.  213,  107  N.  W.  812. 

,  .  The  order  appealed  from  is  affirmed.^        /' 

/      DODGE  and  Others  v.   McMAHAN. 

Supreme  Court  of  Minnesota.     1895. 

[Reported  61  Minnesota,  175.] 

Mitchell,  J.^  This  was  an  action  to  recover  money  "  loaned  to 
the  defendant,  and  paid  for  his  use  and  benefit."  The  answer_was 
a  general  denial.  .  .  . 

~~The  court  excluded  certain  evidence  offered  by  defendant  for  the 
alleged  purposes  of  proving  that  the  transaction  was  not  an  actual 
purchase  of  wheat,  but  a  mere  wager  by  him  on  the  future  price  of_ 
the  commodity.  The  evidence  was  properly  excluded  for  two 
reasons:  First,  it  went  merely  to  the  unexpressed  intention  or 
motive  of  defendant  himself,  of  which  plaintiffs  had  no  knowledge, 
either  when  they  bought  the  wheat  or  when  they  made  the  ad- 
vances for  him;  second,  it  was  inadmissible,  under  the  pleadings. 
Authorities  may  be  found,  even  in  some  of  the  code  states,  to  the 
effect  that,  under  a  mere  denial,  evidence  of  any  fact  may  be  given 
in  evidence  that  would  go  to  the  original  validity  of  the  contract 
sued  on,  —  that  is,  which,  although  admitting  the  making  of  the 
contract,  would  show  that,  when  made,  it  was  for  some  reason 
invalid;  as,  for  example,  that  it  was  made  on  Sunday,  or  that  it 
was  a  gambling  or  wagering  contract.  But  this  rule  is  not  in  ac- 
cordance with  either  the  spirit  of  the  reformed  procedure  or  the 
d(!cisions  of  this  court.     The  correct  rule  is  that,  under  a  denial,  the 

1  De  Lucia  r.  Valente,  83  Conn.  107,  7.5  Atl.  150,  accord.  —  Ed. 
^  A  part  of  the  opinion  is  omitted.  —  Ed. 


224 


PLEADIN 


<A 


Afy 


tr 


defendant  is  at  liberty  to  give  only  such  evidence  as  tends  to  dis- 
prove the  existence  of  the  facts^'^s  facts,  alleged  by  the  plaintiff, 
but  not  of  any  matter  aliunde,  which,  although  admitting  such 
facts,  would  tend  to  avoid  their  legal  effect  and  operation.     Finley 
V.  Quirk,  9  Minn.   179  (194);    Brown  v.  Eaton,  21  Minn.  409; 
Lautenschlager  v.  Hunter,  22  Minn.  267;    Bliss,  Code  PL  §352. 
r^  [  The  cases  holding  that  where  a  plaintiff  alleges  generally  his  own- 
i  ership  of  property,  without  setting  out  the  source  of  his  title,  the 
]  defendant  may  give  evidence  of  any  facts  tending  to  disprove  such 
/   ownership,  so  far  from  being  in  conflict  with  this  rule,  are  in  exact 
I    accord  with  it.  .  .  .  j     -        ^/*,^  .ll*..    Order  affirmed.^ 

MARTIN  V.  SOUTHERN   RY. 


4u^  9^-"^^^ 


^i«*,.**'*' 


Supreme  Court  of  South  Carolina.     1897. 

[Reported  51  South  Carolina,  150.] 


>y 


This  is  an  action  for  personal  injury  alleged  to  have  been 
caused  by  the  defendant's  negligence.  The  answer  denied  all  the 
allegations  of  the  complaint  except  the  corporate  existence  of  the 
defendant.  The  jury  rendered  a  verdict  in  favor  of  the  plaintiff 
for  $266.     The  defendant  appealed  upon  exceptions. ^ 

Gary,  J.  .  .  .  The  fourth  exception  is  as  follows:  4.  "Excepts 
because  the  presiding  Judge  erred,  as  a  matter  of  law,  in  charging 
the  jury  as  follows:  '  Contributory  negligence,  which  you  have 
heard  the  lawyers  discuss  here,  is  a  matter  that  must  be  set  up  in 
the  answer  to  be  proved  upon  the  defense,  and  it  cannot  be  proved 
under  a  general  denial.  An  affirmative  matter  of  defense  must  be 
pleaded,  else  the  proof  will  not  be  allowed  to  be  introduced;  or  if  it 
does  come  into  the  case,  it  will  not  be  considered  a  matter  of  defense 
under  the  pleadings.  Therefore,  Mr.  Foreman,  the  matter  of 
contributory  negligence  is  not  pleaded  here  at  all  ';    whereas  it  is 

1  Raymond  v.  Phipps,  215  Mass.  559,  102  N.  E.  905,  accord. 

The  Statute  of  Frauds.  The  statute  of  frauds  is  generally  held  to  be  an 
aflfirmative  defense.     Citty  v.  Manufacturing  Co.,  93  Tenn.  276,  24  S.  W.  121. 

If  it  affirmatively  appears  on  the  face  of  the  complaint  that  the  contract  is 
unenforceable  because  not  complying  with  the  requirements  of  the  statute  of 
frauds,  the  defendant  should  demur  to  the  complaint.  See  Elliott  v.  Jenness, 
111  Mass.  29;  Crane  v.  Powell,  139  N.  Y.  379,  34  N.  E.  911;  Seamans  v. 
Barentsen,  78  N.  Y.  App.  Div.  30,  79  N.  Y.  Supp.  212.  —  Ed. 

2  The  statement  of  facts  is  taken  from  the  opinion  and  is  abridged.  A 
part  of  the  opinion  together  with  the  dissenting  opinion  of  Mclver,  C.  J.,  is 
omitted.  —  Ed.  > 


/''X-'A„,«,-t^,^|,-..t-<| 


submitted,  that  while  contributory  negligence  is  a  matter  of  de- 
fense, yet  suchdefense  may  be  shownunder  a  general  denial." 
This  question  is  disposed  of  by  the  decision  in  the  case  of  "Wilson  v. 
Charleston  and  Savannah  Railway  Co.,  recently  rendered  by  this 
Court,  in  which  it  was.  held  that  contributory  negligence  is  a  de- 
fense_yvliich  mustjbe  set  up  in  the  answer. 

For  these  reasons,  I  am  of  the  opinion  that  the  judgment  of  the 
Circuit  Court  should  be  affirmed. 

As  Mr.  Justice  Pope  and  Mr.  Justice  Jones  concur  in  this 
opinion,  the  judgment  of  the  Circuit  Court  is  affirmed,^ 


JENKINS  V.   STEANKA. 

Supreme  Court  of  Wisconsin.     1865. 

[Reported  19  WUconsin,  126.1 

*         By  the  Court,  Downer,  J.'^     This  is  an  action  to  recover  forty 
thousand  feet  of  pine  lumber,  alleged  in  the  complaint  to  be  wrong- 
fully detained  by  the  defendant,  and  of  the  value  of  $400.     The 
value  is  not  denied  by  the  answer.      At  the  trial,  the  plaintiffs 
offered  to  prove  the  value  less  than  $400;    but  the  circuit  court 
refused  to  permit  the  evidence  to  be  given,  holding  that  the  plead- 
ings fixed  and  were  conclusive  as  to  the  amount  of  the  value.     In 
this  the  court  below  erred. ..   In  actions  of  trover,  trespass  or  re- 
plevin, before  the  code,  it  was  not  necessary  for  the  defendant  to  /" 
deny  the  amount  of  the  value  or  the  allegation  of  damages,  and  in      .^ 
this  respect  the  code  has  not  altered  the  practice.  -    They  must  be     ' 
proved  even  though  the  defendant  puts  in  no  answer.     Conness 
V.  Main,  2  E.  D.  Smith,  314;  McKenzie  v.  Farrell,  4  Bosworth, 
202.  .  .  . 

Judgment  of  the  court  below  reversed,  and  a  new  trial  ordered.^ 

*  In  some  states  the  plaintiff  must  allege  in  his  declaration  his  own  due 

care.     In  such  states,  his  contributory  negligence  is  of  course  put  in  issue  by  a       . 

general  denial. 

In  general  as  to  what  matters  should  be  pleaded  affirmatively,  see  Pom- 
eroy,  Code  Remedies,  4th  ed.,  pp.  788  el  seq. 

No  attempt  is  here  made  to  show  the  scope  of  the  general  issue  in  the  United 
States  or  in  England,  either  before  or  after  the  Hilary  Rules.  See  Piercy  v. 
Sabin,  10  Cal.  22.  —  Ed. 

^  Only  a  part  of  the  opinion  is  here  given.  —  Ed. 

'  See  Odgers,  Pleading,  7th  ed.,  218. 

Failure  to  deny  does  not  admit  matters  of  aggravation.  Gould,  Pleading, 
2d  ed.,  p.  365.  —  Ed. 


226 


PLEADING 


l^"" 

K' 


<Hy 


)^ 


LEVITT  and  LEVITT  v.  O'ROURKE  ENGINEERING 
CONSTRUCTION   COMPANY. 

Supreme  Court  of  New  York,  Appellate  Division, 
First  Department.     1913. 


orted  160  New  York  Appellate  Division,  869.] 

Appeal  from  an  interlocutory  judgment  of  the  Supreme  Court, 
entered  in  the  office  of  the  clerk  of  the  county  of  New  York  on  the 
17th  day  of  July,  1913,  overruling  a  demurrer  to  a  separate  defense. 

Per  Curiam:  The  complaint  states  a  single  cause  of  action. 
The  different  items  of  damage  are  set  forth  in  separate  paragraphs. 
The  defendant  pleaded,  as  a  separate  and  distinct  defense  to  the 
cause  of  action  set  forth  in  the  4th  paragraph  of  the  complaint, 
that  after  its  alleged  occupation  the  plaintiffs  accepted  from  the 
owner  of  the  land  $200  in  full  payment  of  "  any  and  all  claims  .  .  . 
for  or  on  account  of  such  alleged  occupation."  This  is  not  a  com- 
plete defense  and  does  not  purport  to  be  a  defense  of  any  item  of 
damage  other  than  that  set  forth  in  the  4th  paragraph  of  the  com- 
plaint. It  is  at  most  a  partial  defense  and  to  be  good  should  have 
been  pleaded  as  such.  The  plaintiffs'  demurrer,  upon  the  ground 
that  it  was  insufficient  in  law  upon  its  face,  should,  therefore,  have 
been  sustained.  A  complete  defense,  when  pleaded  as  such,  must 
go  to  the  entire  cause  of  action  set  out  in  the  complaint.  If  it  does 
not,  then  it  is  demurrable.  The  interlocutory  judgment  appealed 
from  is,  therefore,  reversed,  with  costs,  and  the  demurrer  sustained, 
with  costs,  with  leave  to  defendant  to  serve  an  amended  answer  on 
payment  of  costs  in  this  court  and  the  court  below.  Present  — 
Ingraham,  P.  J.,  McLaughlin,  Laughlin,  Dowhng  and  Hotchkiss, 
JJ.  Judgment  reversed,  with  costs,  and  demurrer  sustained,  with 
costs,  with  leave  to  defendant  to  amend  on  payment  of  costs. ^ 


/ 


KELLER  V.   JOHNSON  and  Another. 
Supreme  Court  of  Indiana.     1858. 


[Reported  11  Indiana,  337.] 

Davison,  J.  The  appellees,  who  were  the  plaintiffs,  brought 
this  action  against  Keller  upon  four  several  promissory  notes,  each 
for  the  payment  of  180  dollars.      The  notes  bear  date  April  24, 

1  See  Reed  v.  Firemen's  Ins.  Co.,  76  N.  J.  L.  11,  69  Atl.  724;  McKyring  v. 
Bull,  16  N.  Y.  297,  69  Am.  Dec.  696;  Could,  Pleading,  2d  ed.,  p.  362;  Pomeroy, 
Code  Remedies,  4th  ed.,  pp.  725  et  seq.,  pp.  795  et  seq.  —  Ed. 


^     {yji'^'^  y^r^^--/^ 


HAGGARD  V.    HAY's  ADm'r  227 

1854,  and  are  payable  at  three,  six,  nine,  and  twelve  months,  to  the 
president  and  directors  of  the  Fort  Wayne  and  Southern  Railroad 
Company,  who  assigned  them  to  the  plaintiffs. 

The  defendant  ansAvered  — 

1.  That  he  was  induced  to  execute  the  notes  mentioned,  &c., 
by  the  fraud,  covin,  and  deceit  of  the  railroad  company.^  .  .  . 

There  was  a  demurrer  sustained  to  each  paragraph  of  the  answer; 
and  judgment  was  given  for  the  plaintiffs. 

We  have  decided  that,  under  the  rules  of  pleading  now  in  force,  a 
general  plea  of  fraud  is  not  allowable.  The  facts  constituting  the 
defense  must  be  set  out.  The  first  paragraph  is,  therefore,  no 
defense  to  the  action.  Webster  v.  Parker,  7  Ind.  R.  185.  —  2  R.  S. 
p.  42,  §  66.  .  .  . 

Fer  Curiam.  The  judgment  is  affirmed,  with  2  per  cent  damages 
and  costs.2 


i        HAGGARD   v.   HAY'S  Adm'r. 
Court  of  Appeals  of  Kentucky.     1852. 
[Reported  13  B.  Monroe,  175.] 

Simpson,  C.  J.^  This  is  an  action  brought  by  Hay's  adminis- 
trator, by  petition,  for  a  debt  of  seventy  dollars,  due  by  note. 

The  defendant  filed  an  answer  to  the  petition,  in  which  he  ad- 
mitted the  execution  of  the  note  sued  on,  but  denied  that  he  owed 
the  debt,  or  any  part  of  it,  to  the  plaintiff. 

A  demurrer  to  this  answer  was  filed  by  the  plaintiff,  and  sus- 
tained by  the  court,  and  the  first  question  to  be  decided  is  as  to 
the  sufficienc}"  of  the  answer. 

The  answer  under  the  former  mode  of  pleading  would  have 
amounted  to  a  plea  of  m7  debit,  and  would  not  have  been  good,  as 
the  suit  was^brougHtupon  a  note  in  Avriting,  having  the  dignity  of 
a  specialty;  and  we  are  of  opinion  that  the  answer  was  insuflacient 
under  the  present  practice. 

As  the  answer  admitted  the  execution  of  the  note,  it  was  not 
suflScient  for  it  to  state  that  the  defendant  did  not  owe  it,  but  it 

'  The  opinion  of  the  court  on  this  paragraph  of  the  answer  alone  is  given.  — 
Ed. 

2  But  see  Laun  i'.  Kipp,  155  Wis.  347,  145  N.  W.  183. 

In  an  action  for  hbel  or  slander,  when  the  defamatory  charge  is  general, 
a  justification  must  state  specific  facts.  Fodor  v.  Fuchs,  77  N.  J.  L.  29,  71 
Atl.  108.  —  Ed. 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


^V 


M/ 


^' 


ii 


^ 


-(i- 


u>^ 


228 


PLEADING 


/ 


should  have  stated  the  facts  rehed  upon  by  him,  as  having  the 
effect  to  discharge  him  from  all  liability  for  the  amount,  so  that 
the  court  could  determine  whether  this  was  their  legal  effect,  and 
the  plaintiff  might  be  apprized  of  the  actual  defense  relied  upon 
in  the  answer.  The  answer  was  therefore  defective,  and  the  de- 
murrer to  it  was  properly  sustained.  ... 


;      SWETT  and  Others  v.   SOUTHWORTH  and  Another. 
Supreme  Judicial  Court  of  Massachusetts.     1878. 
[Reported  125  Massachusetts,  417.] 

Contract  upon  an  account  annexed  for  goods  sold  and  deliv- 
ered, and  upon  a  promissory  note  given  by  the  defendants  to  the 
plaintiffs.  Answer:  1.  A  general  denial.  2.  "  And  the  defend- 
ants aver  that  if  the  plaintiffs  shall  prove  the  making  of  the  note 
declared  on,  or  any  of  the  items  in  the  plaintiffs'  bill  of  particulars, 
the  same  have  been  fully  paid." 

At  the  trial  in  the  Superior  Court,  before  Gardner,  J.,  without  a 
jury,  the  plaintiffs  objected  to  the  admission  of  any  evidence  of 
payment  under  this  answer;  but  the  judge  overruled  the  objec- 
tion. ^  .  .  . 

Endicott,  J.  The  defence  of  payment  is  positively  averred  in 
the  answer.  After  a  general  denial,  "  the  defendants  aver,  that  if 
(the  plaintiffs  shall  prove  the  making  of  the  note  declared  on,  or  any 
of  the  items  in  the  plaintiffs'  bill  of  particulars,  the  same  have  been 
fully  paid."  The  case  is  clearly  to  be  distinguished  from  Caverly 
V.  McOwen,  123  Mass.  574,  and  the  other  cases  cited  by  the 
plaintiffs.  .  .  .  Exceptions  overruled.^ 


y 


i 


*  Only  the  opinion  of  the  court  on  this  objection  is  given.  —  Ed. 
>       ^  Hypothetical  pleas  were  open  to  objection  on  special  demurrer  at  commor 
tT    law.     Griffiths  v.  Eyles,  1  Bos.  &  Pul.  413;  Stephen,  Pleading,  Will,  ed.,*  426. ' 
In  Mountford  v.  Cunard  Steamship  Co.,  202  Mass.  345,  88  N.  E.  782,  the 
defendant  in  its  answer  alleged  that  "  if  the  plaintiff  shall  introduce  evidence 
tending  to  show  that  she  was  a  passenger  on  defendant's  steamer,  the  defend- 
ant will  show  that  she  was  suffering  from  trachoma,  and  that  the  defendant 
rightfully  ejected  her."      It  was  held  that  if  no  objection  was  taken  to  the  Ij  m 
answer  by  demurrer  or  motion  to  exclude  evidence,  the  defect  was  waived;^ 
Under  a  somewhat  similar  answer  in  Suit  v.  Woodhall,  116  Mass.  547,  it  was 
held  that  the  court  properly  excluded  evidence. 

See  Odgers,  Pleading,  7th  ed.,  157;  6  Encyc.  of  PI.  and  Pr.  269.  —  Ed. 


/        A* 


/^U^  tM^ 


JUDAH   V.    TRUSTEES    OF   VINCENNES   UNIVERSITY  229 

^       FORTESCUE  v.   HOLT.  \t\ 

King's  Bench.     1672. 

[Reported  1  Veniris,  213.]  i 

A  Scire  facias  was  brought  upon  a  Judgment  of  1000  I.  as  Ad-  ^-t.^-^.*-* — ^  r- 

rainistrator  of  J.  S.  j£jy/.A        i 

The  Defendant  pleaded,  That  before  the  Administration  com-  ^^^"C^'*^^'^ 

mitted  to  the  Plaintiff,  viz.,  such  a  Day,  etc.,  Administration  was  ^^    CZ^^-^o 

granted  to  J.  N.,  who  is  still  alive  at  D.  and  demandeth  Judgment  C^^ 

of  the  Writ.  /Uju^^aM^ 

The  Plaintiff  replies,  J.  N.  died,  etc.,  and  de  hoc  ponit  se  super  Pa-J  (]  ^^^^ 

triam.     And  to  what  the  Defendant  demurs; 

For  that  he  ought  to  have  traversed  absque  hoc,  that  he  was  alive: 

for  though  the  Matter  contradicts,  yet  an  apt  Issue  is  not  formed 

without  an  Affirmative  and  a  Negative;  and  so  said  the  Court."^  .  .  . 


/       JUDAH   V.   THE  TRUSTEES   OF  VINCENNES 
UNIVERSITY. 

Supreme  Court  of  Indiana.     1864. 

[Reported  23  Indiana,  272.] 

Frazer,  J.  .  .  .  The  action  was  to  recover  the  value  of  certain 
state  bonds  of  the  University,  amounting  to  $25,000,  which  it  was 
alleged  the  appellant  had  in  his  hands  as  its  agent  and  attorney, 
and  which,  on  demand,  he  refused  to  deliver,  but  had  sold  and 
converted  to  his  own  use.  The  defendant  below  answered,  among 
other  things,  that  the  University  was  indebted  to  him  for  pro- 
fessional services  as  attorney  in  a  suit  against  the  state,  by  which 
the  bonds  were  obtained,  under  a  special  contract,  evidenced  on 
the  part  of  the  University  by  a  resolution  of  its  board  of  trustees, 
made  and  entered  on  its  records  February  8,  1853,  to  the  effect 
that  for  such  services  he  be  allowed  one-fourth  of  the  net  proceeds 
of  the  suit,  to  be  paid  to  him  proportionally  out  of  such  proceeds, 
as  the  same  should  be  paid  into  the  treasury  of  the  board;  that  of 

*  A  part  of  the  case  is  omitted.  —  Ed. 

-  But  see  Tomlin  i'.  Burlace,  1  Wils.  6,  s.c.  2  Str.  1177.  See  Stephen, 
Pleadins,  Will,  ed.,  *  422. 

The  defect  of  argumentativeness  is  not  open  to  a  general  demurrer.  Sheri- 
dan V.  Sheridan,  58  Vt.  504,  5  Atl.  494;  Walker  v.  Wooster's  Admr.,  61  Vt.  403, 
17  Atl.  492.  —  Ed. 


■i^iM  ^'  ^-ft-c-t- 


230  PLEADING 

said  bonds  he  retained  $16,625,  being  one-fourth,  as  specified  in  the 
foregoing  resolution.  To  this  part  of  the  answer  the  University, 
by  the  second  paragraph  of  their  reply,  say  that,  at  the  date  of  the 
resolution,  Judah  was  secretary  of  the  board  of  trustees,  and  falsely 
entered  the  resolution  on  the  records  of  the  board  of  trustees ;  that 
the  resolution  which  was  actually  adopted  provided,  that  for  all  his 
legal  services  and  outlays  (there  were  numerous  other  suits  con- 
ducted by  Judah  as  attorney  for  the  University,  and  services  and 
expenditures  as  agent)  he  should  be  allowed  one-fourth,  etc.  But 
that  Judah  fraudulently,  and  Avithout  the  knowledge  or  assent  of 
the  board,  entered  the  resolution  in  form  as  stated  in  the  answer. 

Now,  this  reply  is  simply  a  denial  of  so  much  of  the  answer  as 
alleges  the  adoption  of  the  resolution,  or,  in  other  words,  the  making 
of  the  contract  by  the  trustees.  It  is  argumentative  to  be  sure, 
and  it  needlessly  explains  how  a  resolution  never  made  by  the 
trustees  comes  to  be  found  on  their  records.  This  is  surplusage. 
But  neither  argumentativeness  nor  surplusage  justifies  a  demurrer 
under  our  system  of  pleading.  There  was  therefore  no  error  in 
overruling  the  appellant's  demurrer  to  the  second  paragraph  of  the 
reply.^  .  .  . 


BACH,    CORY,    AND    COMPANY,    Limited    v.    MONTANA 
LUMBER  AND   PRODUCE  COMPANY  et  al. 

Supreme  Court  of  Montana.     1895. 
[Reported  15  Montana,  345.] 

De  Witt,  J.  This  is  an  appeal  from  a  judgment  rendered  on  the 
pleadings.  The  action  was  in  replevin.  Upon  complaint  and 
answer  filed  the  plaintiff  moved  for  judgment  on  the  pleadings 
upon  the  following  grounds: 

"  1.  That  there  is  no  denial  in  defendants'  answer  of  the  allega- 
tions in  plaintiff's  compTamt  that  the  defendants  tf)ok  and  received 
the  lumber  in  said  complaint  described. 

''  2.  That  defendants'  answer  admits  that  the  value  of  the 
lumber  taken  by  defendants  as  alleged  in  plaintiff's  complaint  was 
$618,  and  plaintiff  should  have  judgment  for  such  amount  \vith 
legal  interest  thereon  from  the  date  of  conversion. 

"  Elbert  D.  Weed, 
"  Atty.  for  Plaintiff." 

1  A  part  of  the  opinion  is  omitted.  The  judgment  was  reversed  on  the 
ground  «f  an  erroneous  ruling  as  to  the  right  to  open  and  close  at  the  trial.  — 


BACH,    CORY   &    CO.    V.   MONTANA   L.    AND    P.    CO.  231 

This  motion  was  granted.  It  is  true  that  there  was  no  denial 
in  the  answer  that  defendants  took  and  received  the  lumber  which 
was  the  subject  of  the  action.  The  denial  of  the  defendants  is, 
that  they  did  not  take  and  carry  away  the  lumber,  etc.  The 
denial  is  in  the  conjunctive.  A  denial  that  defendants  took  arid 
carried  away  the  goods  is  not  a  denial  that  they  took  the  goods,  or  a 
denial  that  they  carried  them  away.  Boone  on  Code  Pleading, 
§61,  and  cases  cited;  Harris  v.  Shontz,  1  Mont.  212;  Toombs  v. 
Hornbuckle,  1  Mont.  286;  Power  v.  Gum,  6  Mont.  5. 

But  there  is  a  denial  in  the  answer  of  another  material  allegation 
of  the  complaint,  which  denial  raises  an  issue.  The  complaint 
alleges  that  on  a  certain  day  the  plaintiff  was  the  owner  and  law- 
fully possessed  of  the  lumber.  "  The  right  to  the  possession  of 
personal  property  is  essential  in  the  plaintiff  in  an  action  for  claim 
and  delivery."  Laubenheimer  v.  McDermott,  5  Mont.  517;  see 
also  Cobbey  on  Replevin,  §  784. 

This  essential  allegation  was  made,  as  we  have  seen,  in  the  com- 
plaint. This  essential  allegation  of  the  complaint  was  denied  in 
the  answer  in  the  following  language:  "  The  defendants  deny  that  „„--'-" 
the  plaintiff  was,  at  the  time  mentioned,  or  at  any  other  time,  the 
owner  or  lawfully  possessed  of  any  lumber  of  the  description  given 
in  the  complaint,  or  of  the  value  named  therein,  or  of  any  other 
value,  at  the  mill-yard  of  Coffey  and  Brennan,  in  the  county  and 
state  aforesaid."  Here  the  denial  is  in  the  disjunctive,  which  is 
proper.     (See  cases  last  cited.) 

It  is  denied  that  the  plaintiff  was  the  owner  or  lawfully  possessed,^.^ 
of  the  lumber.     This  denial  raised  the  material  issue  as  to  plain- 
tiff's right  of  possession.     There  being  an  issue  raised,  judgment  on 
the  pleadings  was  error,  and  the  same  is  therefore  reversed. 

Reversed} 

Pemberton,  C.  J.,  and  Hunt,  J.,  concur. 

*  Compare  Goram  v.  Sweeting,  2  Saund.  205;  Stephen,  Pleading,  Will,  ed., 
*  278;  Tildesley  v.  Harper,  7  Ch.  Div.  403,  10  Ch.  Div.  393  (allegation  that 
defendant  offered  plaintiff  a  bribe  of  500  I. ;  denial  that  defendant  offered 
plaintiff  a  bribe  of  500  I.);  Feldman  v.  Shea,  6  Ida.  717. 

Where  the  denial  is  in  the  conjunctive  and  puts  the  plaintiff  to  the  proof 
of  several  matters,  the  denial  is  not  too  large  if  the  several  matters  are  all 
necessary  elements  in  the  plaintiff's  case.     South  v.  Jones,  1  Str.  245.  — Ed. 


Kf>^\ 


232 


PLEADING 


SPENCER  V.   TURNEY  &   CO. 


1897. 


Supreme  Court  of  Oklahoma. 
[Reported  5  Oklahoma,  683.] 

BiERER,  J.  J.  Turney  &  Co.,  brought  this  action  in  the  court 
below  to  recover  judgment  for  the  principal  and  interest  upon  a 
note  which  they  allege  in  their  petition  was  made  by  defendant  to 
plaintiffs  at  Fairfield,  Iowa,  on  the  7th  day  of  March,  1889,  for  the 
sum  of  $1,363.50,  with  interest  at  the  rate  of  10  per  cent  per 
annum,  said  note  being  due  six  months  after  its  date. 

The  defendant  filed  a  demurrer  to  the  petition,  which  was  over- 
ruled, and  he  then  answered  in  three  paragraphs,  the  first  being 
X  that  the  note  was  barred  by  limitation  and  the  second  and  third 
D^ng  as  follows: 
.A      }i  Second:   That  said  defendant  did  not  execute  and  deliver  at 
jt  ft  ""Tairfield,  Iowa,  to  the  plaintiffs,  or  either  of  them,  the  note  on 
,'v  Jt^  which  action  has  been  brought  and  which  is  set  up  and  described 
« i^<r       in  plaintiffs'  petition. 

"  Third:  The  defendant  denies  that  he  is  indebted  to  plaintiffs 
in  any  sum  whatever." 

This  answer  was  verified  by  the  defendant. 

Plaintiffs  moved  for  judgment  on  the  pleadings,  which  was 
granted,  and  exceptions  saved,  and  defendant  contends  that  this 
action  of  the  court  was  erroneous. 

It  is  claimed  that  the  second  paragraph  of  defendant's  answer 
was  sufficient  to  put  in  issue  the  execution  of  the  note,  and  the 
cases  of  Brenner  v.  Bigelow,  8  Kan.,  496,  and  Moore  v.  Emmert, 
21  Kan.  1,  are  cited  as  authority  in  support  of  this  position.  The 
cases  referred  to  in  no  way  support  this  claim.  The  answer  is  a 
negative  pregnant,  which,  in  effect,  admitted  that  the  note  was 
executed  as  alleged  in  the  petition,  but  denied  its  execution  and 
delivery  at  Fairfield,  Iowa.  To  deny  that  the  note  was  made  at 
Fairfield,  Iowa,  implies  that  it  was  made  at  some  other  place.  All 
that  this  paragraph  of  the  answer  denied  was  the  place  of  the  exe- 
cution of  the  note  and  as  the  place  where  the  note  was  made  is,  in 
this  case,  entirely  immaterial,  nothing  that  the  plaintiff  alleged  was 
denied  and  the  pleading  tendered  no  issue.  (Bliss  on  Code  Plead- 
ing, §  332.) 

In  Tate  v.  People,  [Col.],  40  Pac.  471,  it  was  held: 

"  A  denial  in  an  answer  that  a  judgment  was  assigned  for  a 
valuable  consideration  is  a  negative  pregnant,  which  admits  the 
assignment  but  denies  the  sufficiency  of  the  consideration." 


MYN   V.    COLE  233 

And  in  Edgerton  v.  Power,  [Mont.],  45  Pac.  204,  it  was  stated 
that: 

"  An  answer  which  denies  that  '  the  amount  of  stock'  sold  by 
plaintiff  to  defendant  was  ever  delivered  is  defective,  because  a 
negative  pregnant." 

The  third  paragraph  of  the  answer  which  denied  that  the  de-  —*X^     y 
fendant  was  indebted  to  the  plaintiffs  in  any  sum  whatever,  also    j  k-'*^^""'^ 
presented  no  issue.      Plaintiffs  did  not  allege  an  indebtedness,     /JLl/l^.'^.^'CI^ 
which  would  have  been  a  conclusion,  but  they  did  allege  the  exe-  cvvwJL*^  Ct, 
cution  and  delivery  of  a  promissory  note,  which  was  an  allegation   p  a' 

of  fact,  and  the  defendant  failed  to  deny  this  fact  by  attempting  to    '"^^  ^' 
deny  a  conclusion  which  plaintiffs  had  not  alleged.    ^ — -  6(v-.t'>^<-*'^-^ 

No  other  question  is  presented  by  brief  of  counsel.  The  trial  ^t<*«-*4.  '^-^ 
court  ruled  correctly  in  sustaining  the  motion  for  judgment  on  the  ()t«  ilL^^  i 
pleadings,  and  the  judgment  is  accordingly  affirmed.  \ 

All  the  justices  concurring.  Affirmed.^ 


MYN   V.   COLE. 
King's  Bench.     1606. 
[Reported  Croke,  J  antes,  87. 


#/ 


Trespass,  for  entering  his  house,  and  taking  his  goods. 

The  defendant  pleads,  as  to  the  goods,  not  guilty;  as  to  the  entry 
into  the  house,  that  the  plaintiff's  daughter  licenced  him,  &c.  and 
that  he  entered  by  that  licence. 

The  plaintiff  saith,  "  quod  non  intravit  per  licentiam  suam  ":  and 
issue  was  joined  thereupon. 

The  first  issue  was  found  for  the  defendant;  and  the  second  issue 
for  the  plaintiff,  that  he  did  not  enter  by  licence;  and  damages 
were  assessed  to  eighty  pounds.  Whereupon  it  was  moved  in  ar- 
rest of  judgment,  that  he  ought  to  have  traversed  the  licence,  and 
not  the  entry  by  the  licence;  for  that  is  pregnant  in  itself,  and  an 
ill  issue:  and  he  ought  to  have  traversed  the  entry  by  itself,  or  the 
Ucence  by  itself,  and  not  both  together. 


1  If  one  party  makes  a  qualified  allegation,  and  the  other  interposes 
denial  of  the  allegation  "  in  manner  and  form  as  alleged,"  the  denial  has  been 
held  to  deny  only  the  qualification.  Rumbough  v.  Improvement  Co.,  106  N.  C. 
461,  11  S.  E.  528;  Storey  v.  Kerr,  2  Neb.  (Unof.),  568,  89  N.  W.  601.  For 
the  effect  at  common  law  of  a  denial  modo  et  forma,  see  Gould,  Pleading,  2d 
ed.,  p.  316;   Stephen,  Pleading,  Will,  ed.,  *219.  —  Ed, 


234  PLEADING 

Williams  and  Yelverton  were  of  that  opinion.       Vide  10 
Edw.  4.     14  Hen.  4,  pi.  32. 

PoPHAM  agreed  that  the  issue  was  ill,  if  it  had  been  at  the  com- 
mon law;  but  being  tried,  it  is  made  good  by  the  statute  of  32  Hen. 
8,  c.  30,  which  aids  mis-joining  of  issues;  for  an  issue  upon  a, 
negative  pregnant  is  an  issue :  per  quod  adjournatur.  ^ 


9^ 


HARDEN  V.   ATCHISON  AND  NEBRASKA  R.  R.   CO. 

Supreme  Court  of  Nebraska.     1876. 

[Reported  4  Nebraska,  521.] 

Maxwell,  J.  The  plaintiff  filed  his  petition  in  the  district  court 
of  Richardson  county,  alleging  "that  on  the  twenty-first  day  of 
July,  1873,  a  mare  belonging  to  plaintiff,  was  on  the  railroad  track 
of  the  defendant,  in  Falls  City  precinct,  Richardson  county,  when 
a  certain  train  of  cars  belonging  to  the  defendant,  and  managed 
and  controlled  by  its  agents  and  employes,  was  passing  over  the 
railroad  track.  That  the  said  agents  and  employes  of  said  rail- 
road, negligently,  carelessly,  and  wantonly,  ran  its  engine  and 
train  of  cars  upon,  over  and  against  said  mare,  breaking  one  of  her 
legs  and  causing  other  injuries,  to  the  damage  of  the  plaintiff  in 
the  sum  of  $75.00,"  etc.  It  was  also  alleged  in  the  petition,  that 
the  railroad  was  not  fenced,  and  that  it  had  been  constructed  more 
than  six  months,  at  the  time  the  injury  was  committed. 

The  defendant  answered  the  petition  of  plaintiff  as  follows: 
"  The  defendant,  answering  the  petition  of  said  plaintiff,  hereto- 
fore filed  against  it  in  the  above  entitled  cause,  says  and  denies 
that  it  negligently,  carelessly,  and  wantonly  ran  its  engine  or  loco- 
motive and  train  of  cars  over  or  against  the  said  mare  of  the  said 
plaintiff.  Defendant  denies  that  the  notice  required  by  the 
statute,  in  such  cases  made  and  provided,  was  given  it  by  said 
plaintiff,  as  to  entitle  said  plaintiff  to  double  damages.  Defendant 
denies  that  said  mare  was  worth  the  sum  of  seventy-five  dollars. 
Defendant  alleges  that  said  mare  of  said  plaintiff  was  injured  in 
the  manner  alleged  by  said  plaintiff's  petition  by  and  through  the 
negligence  and  carelessness  of  the  said  plaintiff." 

On  the  trial  of  the  cause,  the  court  instructed  the  jury  as  fol- 
lows:  "  This  suit  is  brought  by  the  plaintiff  to  recover  damages  of 

1  Aubery  v.  James,  1  Vent.  70;  s.c.  1  Sid.  444,  2  Keb.  623,  accord.  —  Eu. 


'^^    HARDEN  V.   ATCHJSON  AND 

defendant,  alleged  to  be  sustained  by  plaintiff,  by  reason  of  the  , 

defendant  negligently,  carelessly,  and  wantonly,  running  its  engine   ^^J/tn^-^vT*^ 
upon  and  so  badly  injuring  his  mare  as  to  render  it  worthless.      ^1.  ^^^Jl^ 
The  defendant  denies  that  its  engine  or  locomotive  and  train  oi      j    <      /       j 
cars  ran  over  or  against  the  mare  of  the  plaintiff.      This  denial,      1*^^    ffCfMu^, 
puts  the  plaintiff  upon  proof  of  his  cause  of  action;  has  he  proved  " 

the  injury  was  done  by  the  defendant,  or  any  of  its  employes  ?  I 
must  instruct  you  as  a  matter  of  law,  that  the  plaintiff  has  failed  to 
prove  that  the  defendant  committed  the  injury,  and  your  verdict 
must  be  for  the  defendant."  To  this  instruction  the  plaintiff 
excepted.  The  jury  found  a  verdict  for  the  defendant.  The 
plaintiff  filed  a  motion  for  a  new  trial,  which  was  overruled,  and 
judgment  was  rendered  dismissing  the  case.  The  case  is  brought 
into  this  court  by  petition  in  error. 

Sec.  134,  of  the  code  of  civil  procedure,  provides,  that  "  every    ; 
material  allegation  of  the  petition,  not  controverted  by  the  an-   [^ 
swer,  and  every  material  allegation  of  new  matter  in  the  answer,     1 
not  controverted  by  the  reph',  shall  for  the  purposes  of  the  action  be     i 
taken  as  true."  '^^ 

Without  considering  the  admissions  contained  in  the  answer,  is 
there  any  denial  therein,  that  the  injury  complained  of  was  com- 
mitted by  the  defendant  ?  We  think  not.  It  is  denied  that  the 
"  defendant  negligently,  carelessly,  and  wantonly  ran  its  engine,  or 
locomotive  and  train  of  cars  over,  or  against  the  said  mare  of  the 
said  plaintiff,"  but  this  is  a  mere  denial  of  negligence  on  the  part 
of  the  defendant,  and  not  a  denial  that  the  defendant  occasioned  / 

the  injury  complained  of.  "A  defendant  must  answer  the  charges  "  /  ^<X 
directly,  without  evasion,  and  not  by  way  of  negative  pregnant." 
1  Vansantvoords,  Eq.,  204.  Moaks  Van  Sant,  PL,  814.  Baker  v. 
Bailey,  16  Barb.,  56.  Fish  v.  Redington,  31  Cal.,  194.  Robins 
V.  Lincoln,  12  Wis.,  8.  A  denial  must  be  direct  and  unambiguous,^ 
and  must  answer  the  substance  of  each  direct  charge;  and  such 
facts  as  are  not  denied  by  the  answer  for  the  purposes  of  the  action, 
are  to  be  taken  as  true.  This  requirement  of  the  statute  is  not 
designed  to  prevent  the  defendant  from  denying  such  facts  in  the 
petition,  as  he  believes  to  be  untrue,  but  to  prevent  the  introduction 
of  fictitious  issues;  and  while  denials  must  be  positive  and  direct, 
the  verification  need  only  be,  that  the  defendant  believes  the  facts 
stated  in  the  answer  to  be  true. 

There  being  no  denial  in  the  answer  that  the  defendant  commit- 
ted the  injuries  complained  of,  no  proof  of  those  facts  was  required. 


/ 


236  PLEADING 

The  court  therefore  erred  in  instructing  the  jury  to  find  for  the 
defendant.  The  judgment  of  the  district  court  is  reversed,  and 
the  case  remanded  for  further  proceedings. 

Reversed  and  remanded.^ 
Lake,  Ch.  J.,  concurred. 


EDSON   V.   DILLAYE   and  Others.  '"  ^^ 

Supreme  Court  of  New  York.     1853.  ^ 

[Reported  8  Howard's  Practice  Reports,  273.] 

The  complaint  and  answer  were  both  verified  in  the  usual  form. 
A  motion  is  made  on  the  part  of  the  plaintiff  for  an  order  to  strike 
out  all  of  the  defendants'  answer,  except  that  part  which  admits 
the  execution  of  the  note,  as  false  and  frivolous,  or  for  such  other 
order  as  to  the  court  shall  seem  meet,  with  costs.  The  other  facts 
are  sufficiently  noticed  in  the  opinion  of  the  court. 

Welles,  J.  I  am  satisfied  that  the  answer  in  this  case,  except- 
ing that  part  of  it  which  admits  the  making  of  the  note,  is  entirely 
frivolous.  Section  152  of  the  Code  provides  that  sham  and  irrele- 
vant answers  and  defences  may  be  stricken  out  on  motion.  By 
section  247,  if  a  demurrer,  answer  or  reply  be  frivolous,  the  party 
prejudiced  thereby  may  apply  to  a  judge  of  the  court,  either  in  or 
out  of  court,  for  judgment  thereon,  and  judgment  may  be  given 
accordingly.  Section  149  declares  that  the  answer  of  the  de- 
fendant must  contain,  1st.  A  general  or  specific  denial  of  each 
material  allegation  of  the  complaint  controverted  by  the  defend- 
ant, or  of  any  knowledge  or  information  thereof,  sufficient  to  form  a 
belief.  2d.  A  statement  of  any  new  matter  constituting  a  defence 
or  counter  claim,  in  ordinary  and  concise  language,  without 
repetition. 

It  is  not  pretended  that  the  answer  in  this  case  falls  under  the 
second  sub-division.  It  certainly  contains  no  new  matter.  It  is 
contended  that  it  does  contain  specific  denials  of  material  allega- 
tions of  the  complaint.  They  are,  first,  a  denial  of  the  allegation 
of  non-payment  of  the  note  contained  in  the  complaint;  second,  a 
denial  of  indebtedness  by  reason  of  making  the  note,  or  that  the 

»  Wall  V.  Buffalo  Water  Works  Co.,  18  N.  Y.  119,  contra. 

An  answer  like  that  in  the  principal  case  is  a  negative  pregnant  and  open  to 
a  motion  to  make  more  definite  and  certain,  but  the  objection  is  waived  by 
failure  to  make  such  a  motion.  See  Wall  v.  Buffalo  Water  Works  Co.^  supra. 
—  Ed. 


M 


SNOW    V.    CHATFIELD  237 

note  or  any  part  of  it  is  justly  due  or  owing  by  the  defendants  to  the 
plaintiff.  Under  these  denials,  no  new  matter  would  be  admissible 
in  evidence.  The  plaintiff  would  have  nothing  to  prove  upon  the 
trial,  except  it  might  be  a  computation  of  the  interest  upon  the 
note;  for  the  making  of  the  note  is  admitted  by  the  answer.  He 
would  only  have  to  open  his  case  to  the  jury  and  demand  their 
verdict;  and  there  is  nothing  that  the  defendants  could  give  in 
evidence  under  their  answer.  That  they  could  not  prove  pay- 
ment, because  they  have  not  set  it  up  in  their  answer;  and  so,  of 
any  other  imaginable  defence.  Having  admitted  the  making  of 
the  note,  and  not  having  set  up  any  fact  showing  why  they  ought 
not  to  pay  it,  their  liability  to  pay  it  is  a  legal  conclusion,  from 
which  the  defendants  cannot  escape,  as  they  have  not  prepared  the 
way  by  their  answer,  for  giving  any  defence  in  evidence. 

The  defendants'  counsel  have  requested  pennission  to  amend. 
Amendments  are  usually  allowed  in  order  to  promote  the  ends  of 
justice.  In  the  present  case  there  is  no  affidavit  showing  that  the 
defence  was  interposed  in  good  faith;  and  the  moving  affidavits 
show  a  state  of  facts  entirely  inconsistent  with  any  defence  what- 
ever; and  these  affidavits  are  not  met,  or  attempted  to  be  met, 
with  any  denial  or  explanation.  I  do  not  understand  the  practice 
to  be  to  allow  of  relieving  a  defendant  from  such  a  predicament, 
into  which  he  has  voluntarily  brought  himself. 

The  motion  is  granted,  with  ten  dollars  costs,  and  judgment  is 
ordered  for  the  plaintiff  for  the  amount  of  the  note,  to  be  assessed 
upon  regular  notice  by  the  clerk  of  Monroe  county,  which  county 
is  designated  in  the  complaint  as  the  place  of  trial. ^ 


'^^ 


SNOW  V.   CHATFIELD. 

Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  11  Gray,  12.] 

Action  of  tort.  The  declaration  alleged  that  the  defendant 
"  wrongfully,  wilfully  and  without  right  "  dug  and  excavated  a 
sluice  way  and  ditch  along  the  line  of  a  highway  in  West  Stock- 
bridge,  and  near  the  plaintiff's  dwelling-house,  and  thereby  injured 
the  house.  The  answer  denied  "  each  and  every  allegation  con- 
tained in  the  plaintiff's  declaration." 

»  See  Columbia  Nat.  Bank  v.  Western  Iron  &  Steel  Co.,  14  Wash.  162,  44 
Pac.  145.  —  Ed. 


^ 


238 


PLEADING 


At  the  trial  in  the  court  of  common  pleas,  the  defendant  offered 
to  show  that  the  sluice  way  and  ditch  were  excavated  with  the 
consent  and  approbation  of  the  surveyor  of  highways.  Mellen, 
C.  J.  admitted  the  evidence  for  the  purpose  of  rebutting  any 
inference  of  the  Avilfulness  of  the  act  complained  of;  but  refused 
to  admit  it  for  the  purpose  of  establishing  a  legal  justification,  on 
the  ground  that  no  such  defence  was  set  up  in  the  answer.  The 
verdict  was  for  the  plaintiff,  and  the  defendant  alleged  excep- 
tions. 

Dewey,  J.  The  evidence  offered  by  the  defendant  was  to 
prove  a  substantive  fact  intended  to  be  relied  on  by  the  defendant 
in  avoidance  of  the  action,  and  should  therefore,  under  the  pro- 
visions of  St.  1852,  c.  312,  §  18,  have  been  set  forth  in  precise  terms 
in  the  answer.  It  is  no  excuse  for  not  doing  this  that  the  declara- 
tion alleges  that  "  the  defendant  wrongfully,  wilfully  and  without 
right  "  dug  and  excavated  a  sluice  way  or  ditch  along  the  line  of  the 
highway  and  near  the  dwelling-house  of  the  plaintiff,  thereby 
injuring  the  plaintiff's  dwelling-house.  Such  form  of  declaring 
does  not  require  the  plaintiff  to  prove  as  a  part  of  his  case  in  the 
first  instance  that  the  same  was  not  done  by  a  surveyor  of  high- 
ways, acting  under  the  written  approbation  of  the  selectmen  of  the 
town.  The  proof  of  the  acts  set  forth  in  the  declaration,  and  the 
alleged  injury  to  the  plaintiff  thereby,  would  require  of  the  defend- 
ant to  justify,  if  he  would  maintain  his  defence.  Such  justification 
or  substantive  defence  should  be  stated  in  his  answer.  He  not 
having  done  so,  but  merely  filed  a  general  denial  of  "  each  and  every 
allegation  contained  in  the  plaintiff's  declaration,"  has  no  right 
upon  these  pleadings  to  justify  his  acts  under  any  authority  de- 
rived from  a  surveyor  of  highways.  Exceptioiis  overruled. 


THE   ORIENT   INSURANCE   COMPANY   OF  HART- 
FORD,  CONN.   V.   NORTHERN   PACIFIC   RAILWAY 
COMPANY. 

Supreme  Court  of  Montana.     1905. 

[Reported  31  Montana,  502.] 

Action  by  the  Orient  Insurance  Company  of  Hartford,  Con- 
necticut, against  the  Northern  Pacific  Railway  Company,  to 
recover  insurance  paid  to  owners  of  wool  stored  in  a  warehouse 
ignited  by  sparks  from  defendant's  engines  and  burned.  Judg- 
ment for  plaintiff.     Defendant  appealed.     Affirmed. 


U^^UTn^'^^^^^     CANFIELD  A^:  fo 

Clayberg,  C.^     Appeal  by  the  Northern  Pacific  Railway  Com-         Ca^J<^l./-<a^} 

n\T  frr>m   Q   iiiHnrmf>nt  nnrl  orrlpr  ovprnilino'  its  motion  for  n.  npwr  'If  i 


^jj^"^ 


pany  from  a  judgment  and  order  overruling  its  motion  for  a  new 
triai.2  ... 

Under  the  decisions  of  this  court,  contributory  negligence  on  the 
part  of  plaintiff  is  a  defense  which,  in  order  to  be  relied  on,  must  be 
pleaded  by  defendant,  in  cases  of  this  character.      Ball  v.  Gus- 
senhoven,  29  Mont.  321,  74  Pac.  871;    Cummings  v.  Helena  &^.^ 
Livingston  S.  &.  R.  Co.,  26  Mont.  434,  68  Pac.  852,  and  ^^^^^  Jja^ 

cited.      The  existence  of  contributory  negligence  need  not  be         ^v'*^ 
negatived  in  the  complaint  unless  it  appears  from  other  allegations   J^r/t/^-^'*^  ^ 
therein  that  the  proximate  cause  of  the  injury  was  the  act  of  the    '^i/'*'**'*^ 
plaintiff.     Upon  the  other  allegations  of  this  complaint,  it  is  very 
apparent  that  the  proximate  cause  of  the  injury  in  this  case,  for 
which  suit  was  brought,  was  not  the  act  of  plaintiff,  or  of  any  of  its 
predecessors  or  its  assignees,  but  that  of  defendant.     We  find  no 
allegations  of  such  defense  in  the  answer.     True,  the  allegation  is^ 
found  in  the  complaint  that  the  wool  was  destroyed  by  negligence    \ 
of  defendant,  "  and  wholly  by  reason  thereof,  and  without  any  j 
fault  on  the  part  of  said  firm  of  Hunter  &  Anderson,  or  of  any^  /^^^c  tr^ 
member  thereof,  or  plaintiff."      This  allegation  was  denied  gen-~)      /, , 
erally  in  the  answer.     This  is  not  suflScient  to  raise  the  issue  of  the 
contributory  negligence  of  the  plaintiff  or  its  assignors.     Plaintiff 
was  not  required,  as  above  stated,  to  allege  want  of  contributory 
negligence,  and  therefore  its  allegations  above  quoted  are  mere 
surplusage,  and  need  not  be  proved.     Defendant  cannot  be  heard 
to  assert  that  it  is  excused  from  pleading  the  defense  of  contributory 
negligence  because  of^this  allegation  in  the  complaint.  .  .  . 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion, 
the  judgment  and  order  are  affirmed.  i 

C ANFIELD  e<  aZ.   v.   TOBIAS   et  al.  \P'^      ^ 

Supreme  Court  of  California.     1863. 
[Reported  21  Calijornia,  349.] 

Cope,  J.,  dehvered  the  opinion  of  the  Court  —  Field,  C.  J., 
and  Norton,  J.,  concurring. 

This  is  an  action  to  recover  a  balance  alleged  to  be  due  on  an 
account  for  goods,  wares,  and  merchandise.    The  plaintiff  obtained 

'  .\  part  of  the  opinion  is  omitted.  —  Ed. 

2  The  court  witlidrew  from  the  jury  the  consideration  of  contributory 
negligence.  —  Ed. 


240 


PLEADING 


i 


a  judgment  upon  the  pleadings,  and  the  only  question  is  as  to 
the  sufficiency  of  the  answer. 

The  answer  admits  that  the  indebtedness  once  existed,  but  avers 
that  certain  promissory  notes,  signed  by  the  defendants  and  in- 
dorsed by  a  third  person,  were  received  by  the  plaintiffs  in  satisfac- 
tion of  the  debt.  It  contains  a  copy  of  a  receipt  purporting  to  have 
been  signed  by  the  plaintiffs,  acknowledging  that  the  notes  were 
received  in  full  payment  of  the  amount  due,  and  avers  that  the 
notes  themselves  have  been  paid.  For  the  purposes  of  the  case, 
the  matters  set  forth  in  the  answer  are  to  be  taken  as  true,  and  there 
is  no  doubt  that  these  matters,  relieved  of  other  considerations, 
constitute  a  defense  to  the  action.  It  is  claimed,  however,  that  the 
answer  fails  to  deny,  or  denies  insufficiently,  certain  allegations  of 
V.  the  complaint  charging  the  defendants  with  fraud  and  misrepre- 
sentation in  procuring  the  assent  of  the  plaintiffs  to  the  arrange- 
ment referred  to.  The  character  of  the  arrangement  is  fully  set 
forth  in  the  complaint,  and  the  allegations  upon  the  subject  were 
inserted  by  way  of  anticipation,  and  not  as  a  part  of  the  cause  of 
action  necessary  to  be  stated  in  the  first  instance.  They  are  not, 
therefore,  such  allegations  as  were  required  in  the  complaint,  and 
treating  the  denials  in  the  answer  as  insufficient  to  raise  an  issue 
upon  them,  the  question  occurs  as  to  whether  they  are  to  be  acted 
upon  as  admitted.  The  statute  provides  that  every  material/^ 
i  allegation  in  the  complaint,  not  specifically  controverted  by  the 
answer,  shall  be  taken  as  true;  and  a  material  allegation  is  defined 
to  be  one  which  is  essential  to  the  claim,  and  cannot  be  stricken 
from  the  pleading  without  leaving  it  insufficient.  Prac.  Act, 
sees.  65,  66.  It  would  seem  from  this  that  an  allegation  which  is 
not  essential  to  the  claim,  and  which,  therefore,  is  an  immaterial 
one,  is  not  an  allegation  necessary  to  be  controverted  by  the  an-^y^ 
swer,  in  order  to  avoid  the  consequence  attached  to  a  failure  in  this 
respect  as  to  a  material  allegation.  The  language  used  is  equiva- 
lent to  saying,  that  unless  the  allegation  is  essential  to  the  suffi- 
ciency of  the  pleading  this  consequence  is  not  to  follow,  for 
expressio  unius  est  exclusio  alterius  is  the  rule  in  such  cases.  The  / 
only  allegations  essential  to  a  complaint  are  those  required  in 
stating  the  cause  of  action,  and  allegations  inserted  for  the  purpose 
of  intercepting  and  cutting  off  a  defense  are  superfluous  and  im-y 
material.  The  matter  alleged  may  be  material  in  the  case,  but 
immaterial  in  the  complaint,  and  a  plaintiff  cannot  by  pleading 
such  matter  at  the  outset  call  upon  the  defendant  to  answer  it.^ 
He  must  plead  it  at  the  proper  time  and  in  pursuance  of  the  rules 


/ 


NEW   YORK   CODE  241 

regulating  the  course  of  proceeding,  and  he  cannot  anticipate  the 
defense  to  be  made  and  reply  to  it  in  advance.  The  object  of  such 
pleading  is  to  put  the  adverse  party  upon  his  oath  without  making 
him  a  witness,  and  the  effect  of  allowing  it  would  be  to  establish  a 
system  of  discovery  in  conflict  with  the  spirit  of  the  statute.  We 
are  of  opinion,  therefore,  that  the  allegations  in  question  are  not 
such  as  the  defendants  were  called  upon  to  answer,  and  that  no 
inference  of  their  truth  is  to  be  drawn  from  a  failure  to  deny  them; 

Judgment  reversed  and  cause  remanded. 

Statute  4  Anne,  Chapter  XVI,  Sections  4  and  5  (1705). 

[11  Statutes  at  Large,  156.] 

And  be  it  further  enacted  by  the  authority  aforesaid.  That 
from  and  after  the  said  first  day  of  Trinity  term  [1706]  it  shall  and 
ma}^  be  lawful  for  any  defendant  or  tenant  in  any  action  or  suit, 
or  for  any  plaintiff  in  replevin,  in  any  court  of  record,  with_  the^ 
leave  of  the  same  court,  to  plead  as  many  several  matters  thereto, 
as  he  shall  think  necessary  for  his  defence^^ 

Provided,  nevertheless.  That  if  any  such  matter  shall  upon  a 
demurrer  joyned,  be  judged  insufficient,  costs  shall  be  given  at  the 
discretion  of  the  court;  or  if  a  verdict  shall  be  found  upon  any 
issue  in  the  said  cause  for  the  plaintiff  or  demandant,  costs  shall  be 
also  given  in  like  manner,  unless  the  judge  who  tried  the  said  issue, 
shall  certify,  that  the  said  defendant,  or  tenant,  or  plaintiff  in 
replevin,  had  a  probable  cause  to  plead  such  matter  which  upon 
the  said  issue  shall  be  found  against  him. 

New  York  Code  of  Civil  Procedure. 

Sec.  507.  A  defendant  may  set  forth,  in  his  answer,  as  many 
defenses  or  counterclaims,  or  both,  as  he  has,  whether  they  are 
such  as  were  formerly  denominated  legal  or  equitable.  Each 
defense  or  counterclaim  must  be  separately  stated,,  and  numbered. 
Unless  it  is  interposed  as  an  answer  to  the  entire  complaint,  it 
must  distinctly  refer  to  the  cause  of  action  which  it  is  intended  to 
answer.  ^ 


242  PLEADING 

SHALLCROSS   v.  WEST  JERSEY  AND  SEASHORE 
RAILROAD   COMPANY  et  at. 


^ 


Supreme  Court  of  New  Jersey.     1907. 
[Reported  75  New  Jersey  Law,  395.] 

SwAYZE,  J.^  Four  corporations  were  made  defendants  in  this 
suit.  At  the  trial  the  plaintiff  suffered  a  voluntary  nonsuit  as  to 
the  Philadelphia  and  Camden  Ferry  Company,  and  a  verdict  was 
rendered  against  the  West  Jersey  and  Seashore  Railroad  Company, 
the  Pennsylvania  Railroad  Company  and  the  United  New  Jersey 
Railroad  and  Canal  Company.  We  fail  to  find  any  evidence  con- 
necting the  last-named  company  with  the  injury  of  which  the 
plaintiff  complains,  and  the  only  ground  on  which  the  motion  to 
nonsuit  as  to  that  company  was  resisted  was  its  plea  of  justification. 
But  this  plea  was  accompanied  by  a  plea  of  not  guilty.  Although 
these  pleas  are  inconsistent,  it  is  permissible  to  file  inconsistent 
pleas  since  the  statute  of  4  Anne,  which  appears  in  a  modified 
form  in  our  Practice  act  as  section  116.  Pamph.  L.  1903,  p.  570; 
Parks  V.  McClellan,  15  Vroom  552.  Tidd  cites  a  case  where  in 
trespass  the  defendant  pleaded  not  guilty  and  several  pleas  in 
justification.      1  Tidd  659. 

Manifestly  the  permissibility  of  such  inconsistent  pleas  prevents 
the  plea  of  justification  from  being  evidence  in  the  plaintiff's  favor 
on  the  plea  of  not  guilty,  even  if  pleadings  are  to  be  treated  as 
admissions  of  the  parties,  which  may  well  be  doubted.  Greenl. 
Ev.  (Wigm.  ed.),  §  186. 

The  effect  of  a  bill  of  particulars  (Lee  v.  Heath,  32  Vroom  250) 
rests  on  a  different  ground.  It  is  an  admission  of  a  party,  and  not 
a  mere  pleading  by  an  attorney.  ^  .  .  . 

r 

STEENERSON   v.   WATERBURY  e^  a^ 

Supreme  Court  of  Minnesota.     1893. 

[Reported  52  Minnesota,  211.) 

Collins,  J.^  .  .  .  There  was  a  general  denial  in  the  answer  by 
which  the  allegations  of  the  complaint  as  to  the  rendition  of  the 
services,  and  that  they  were  performed  at  defendants'  request,  were 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 

2  See  Wheeler  v.  Robb,  1  Black.  (Ind.),  330,  12  Am.  Dec.  245;  Troy  & 
Rutland  R.  R.  Co.  v.  Kerb,  17  Barb.  (N.  Y.),  581;  De  Waltoff  v.  Third  Ave. 
R.  R.  Co.,  75  N.  Y.  App.  Div.  351,  78  N.  Y.  Supp.  132.  —  Ed. 

3  Only  a  part  of  the  opinion  is  given.     There  was  a  verdict  for  the  plaintili 


STEPHEN    ON   PLEADING  243 

put  in  issue,  and  this  denial  was  followed  by  a  special  averment  that 
prior  to  the  commencement  of  the  action  defendants  had  paid 
plaintiff  in  full  of  all  demands,  including  that  set  forth  in  the 
complaint.  The  position  of  plaintiff  was,  and  is,  that,  because  of 
an  inconsistency  between  the  general  denial  and  the  special  plea 
of  payment,  the  latter  controlled,  and  it  stood  admitted  on  the 
trial  that  the  professional  services  were  rendered  at  defendants' 
request.  Under  our  system  of  pleading,  a  defendant  may  set  up  as 
many  defenses  as  he  may  have;  the  only  limit  to  this  right  being 
that  they  must  not  be  inconsistent.  Separate  and  distinct  de- 
fenses are  consistent  when  both  may  be  true,  and  are  only  held-- — 
inconsistent  when  the  proof  of  one  necessarily  disproves  the  other. — 
These  allegations  did  not  stand  opposed  to  the  extent  that,  if  one 
should  be  established  by  testimony,  the  other  would  of  necessity 
be  proven  untrue;  for  the  fact  might  be  that  plaintiff's  services  had 
been  rendered  without  defendants'  request,  and  yet  have  been 
considered  and  taken  into  account  in  a  subsequent  settlement,  at 
which  they  paid  plaintiff  in  full  of  all  demands.  //There  exists  no" 
good  reason  why  one  should  not  be  permitted  to  settle  a  claim  for 
services  which  he  regards  as  unjust,  because  no  services  have  been 
required,  without  having  his  act  construed  to  his  prejudice.  .  .  . 

.     \X  Order  affirmed}  i^^ 

[Stephen,  Pleading,  Williston's  edition,  *o0-*57.]  i^       f '^^^Jsh^'^"^^ 

Pleas  are  divided  into  pleas  dilatory  and  peremptory ;  and  this  is 
the  most  general  division  to  whichThey  are  subject^ 

Subordinate  to  this  is  another  division.  Pleas  are  either  to  the 
jurisdiction  of  the  Court  —  in  suspension  of  the  action  —  in  abate- 
ment of  the  writ  or  declaration  —  or,  in  bar  of  the  action;  the 
three  first  of  which  belong  to  the  dilatory  class,  the  last  is  of  the 
peremptory  kind.  /         aIT^' 

A  plea  to  the  jurisdiction  is  one  by  which  the  defendant  excepts         x^lL/kjAArv 
to  the  jurisdiction  of  the  Court  to  entertain  the  action.  .  .  .  -i^-v"^'''''*^ 

A  plea  in  suspension  of  the  action  is  one  which  shows  some  ground 
for  not  proceeding  in  the  suit  at  the  present  period,  and  prays  that 
the  pleading  may  be  stayed  until  that  ground  be  removed.  The 
number  of  these  pleas  is  small,  and  none  of  them  is  of  ordinary 
occurrence  in  practice. 

and  the  trial  court  granted  a  new  trial  on  the  ground  that  the  verdict  was  not 
sufficiently  supported  by  the  evidence.  —  Ed. 

'  See  Pomeroy,  Code  Remedies,  4th  ed.,  pp.  830  el  seq.  —  Ed. 


rju^'*-''^^ 


.A^-*^ 


I 


A 

'/ 

CD 

ats. 
A.  B. 

244  \  pleadJnJ  ^■a^.-U  -  ^o^«*^ 

A  plea  in  abaiement  is  one  which  shows  some  ground  for  abating 
or  quashing  the  original  writ  in  a  real  or  mixed  action,  or  the  dec- 
laration in  a  personal  action,  and  makes  prayer  to  that  effect. 

The  grounds  for  such  plea  are  any  matters  of  fact  tending  to 
impeach  the  correctness  of  the  writ  or  declaration;  i.  e.,  to  show 
that  they  are  improperly  framed,  without,  at  the  same  time,  tend- 
ing to  deny  the  right  of  action  itself. 

Besides  these  pleas  in  abatement,  properly  so  called,  there  are 
others  which  take  exception  to  the  personal  competency  of  the_^ 
parties  to  sue  or  to  be  sued;  these  are  not  founded  on  any  objection 
to  the  writ  or  declaration,  and  therefore  do  not  fall  within  the 
definition  which  has  been  given  of  pleas  in  abatement;  but  as  they 
offer  like  them  a  sort  of  formal  objection,  and  do  not  tend  to  deny 
the  right  of  action  itself,  they  are  considered  as  of  the  same  general 
nature  with  that  class  of  pleas,  and  pass  under  the  same  denomina- 
tion. .  .  . 

The  effect  of  all  pleas  in  abatement,  if  successful,  is,  that  the 
particular  action  is  defeated.  But,  on  the  other  hand,  the  right  i/ 
of  suit  itself  is  not  gone;  and  the  plaintiff,  on  resorting  to  a  better 
form  of  writ  or  declaration,  may  maintain  a  new  action,  if  the 
objection  were  founded  on  the  frame  or  tenor  of  those  instruments; 
or  if  the  objection  were  to  the  ability  of  the  party  (as  in  the  last  of 
the  above  examples),  a  new  action  may  be  brought  when  that  dis- 
ability is  removed. 

[Form  of  Plea  in  Abatement.]  ^ 

In  the  Queen's  Bench. 

The day  of ,  in  the 

year  of  our  Lord 

The  defendant,  by his  attorney,  [or,  in  per- 
son], prays  judgment  of  the  said  declaration,  because 
he  says  that  the  said  several  supposed  promises  and  un- 
dertakings in  the  said  declaration  mentioned  (if  any  such  were 
made),  were  made  jointly  with  one  G.  H.,  who  is  still  living,  and  at 
the  commencement  of  this  suit  was  and  still  is  resident  within  the 
jurisdiction  of  this  Court,  to  wit,  at ,  and  not  by  the  defend- 
ant alone.  And  this  the  defendant  is  ready  to  verify.  Wherefore 
inasmuch  as  the  said  G.  H.  is  not  named  in  the  said  declaration, 
together  with  the  said  defendant,  he,  the  said  defendant,  prays 
judgment  of  the  said  [writ  and]  declaration,  and  that  the  same  may 
be  quashed. 

1  See  Stephen,  Pleading,  Will,  ed.,  *  54.  —  Ed. 


STACY   V.    KEMP  245 


aH^ 


HASTROP  V.   HASTINGS. 

King's  Bench.     1692. 

(Reported  1  SaXkeU,  212.] 

In  an  action  upon  the  case  for  beer  and  wages,  the  defendant 
pleaded  in  abatement,  ei  pet.  judicium  de  hilla,  et  quod  billa  -prcedict. 
cassetur,  for  uncertainty  in  the  declaration  upon  demurrer,  the  de- 
fendant's counsel  insisted  upon  many  faults  in  the  declaration.  Et 
per  Cur.  The  defendant  shall  not  take  advantage  of  mistakes  in 
the  declaration  upon  a  plea  in  abatement;  but  if  he  would  do  that, 
he  must  demur  to  the  declaration,  per  quod  a  respondeas  ouster  was 
awarded.^ 


Section  III. 
Recoupment,  Set-off  and  Counterclaim. 

STACY  V.   KEMP.  ^ 

Supreme  Judicial  Court  of  Massachusetts.     1867. 
[Reported  97  Massachusetts,  166.] 

Contract  upon  a  promissory  note,  the  making  of  which  the 
defendant  admitted  in  his  answer.  .  .  . 

It  further  appeared  in  evidence  that  the  defendant  was  about 
to  go  into  the  business  of  peddling  milk  in  Holyoke,  and  bought 
of  one  Cleveland,  who  held  himself  out  as  acting  for  the  plain- 
tiff, a  lot  of  personal  property  and  a  milk  route,  agreeing  to  pay 
to  the  plaintiff  six  hundred  dollars  therefor,  and  did  pay  three 
hundred  dollars  in  cash,  and  gave  his  note  for  the  balance,  which 

'  Advantage  may  be  taken  on  general  demurrer  of  defects  of  form  in  a 
plea  in  abatement.     Walden  v.  Holman,  2  Ld.  Raym.  1015. 

Judgment.     At  common  law  if  the  plaintiff  demurs  to  a  plea  in  abatement     '^ 
and  the  demurrer  is  overruled,  the  judgment  is  that  the  writ  or  declaration  be 
quashed  {cassetur  breve,  or  narralio). 

If  the  plaintiff  traverses  a  plea  in  abatement  and  the  verdict  is  given  for  the 
defendant,  the  judgment  is  the  same. 

If  a  demurrer  to  a  plea  in  abatement  is  sustained,  the  judgment  is  that  the 
defendant  answer  over  {respondeat  ouster). 

If  the  plaintiff  traverses  a  plea  in  abatement  and  the  verdict  is  given  for  the 
plaintiff,  the  judgment  is  that  the  plaintiflf  recover.  Myers  v.  Erwin,  20  Oh. 
381;  Boright  i'.  Wilhams,  87  Vt.  245,  88  Atl.  735;  Ames,  Cases  on  Pleading, 
ed.  of  1905,  28.  —  Ed. 


246  PLEADING 

is  the  note  in  suit;  and  that,  at  the  time  of  paying  the  money  and 
giving  the  note,  the  plaintiff  gave  to  him  a  writing  in  the  following 
words:  "  Holyoke,  June  23,  1866.  Sold  this  day  to  S.  B.  Kemp 
one  milk  route  and  fixtures,  consisting  of  one  buckskin  colored 
horse,  one  covered  milk  cart,  one  open  milk  sleigh,  two  harnesses, 
two  buffalo  robes,  one  horse-blanket,  one  halter,  one  surcingle, 
thirty  milk  cans  more  or  less,  one  rack  for  hanging  cans,  for  the 
sum  of  six  hundred  dollars.  Received  payment,  (Signed)  N.  W. 
Stacy." 

The  defendant  then  offered  to  prove  that  Cleveland  was  the 
real  owner  of  the  property  sold  and  of  the  note  in  suit;  that  the 
use  of  the  plaintiff's  name  in  the  transaction  was  to  guard  it  against 
Cleveland's  creditors;  and  that,  at  the  time  the  bargain  was  made, 
and  as  part  of  the  same,  and  for  the  same  consideration  of  six 
hundred  dollars,  Cleveland  agreed  orally,  with  the  consent  and 
knowledge  of  the  plaintiff,  not  to  peddle  milk  in  Holyoke  while  the 
defendant  should  continue  in  that  business  there;  but  that,  in 
violation  of  this  agreement,  Cleveland  had  continued  to  peddle 
milk  over  the  same  route,  greatly  injuring  the  defendant's  business 
thereby;  but  the  judge  ruled  that  evidence  of  this  agreement  was 
inadmissible.  The  defendant  then  offered  to  prove  that,  by  the 
plaintiff's  act  through  Cleveland,  the  milk  route  described  in  the 
writing  executed  by  the  plaintiff  had  been  rendered  valueless  to 
him,  and  that  Cleveland,  by  the  authority  of  the  plaintiff,  in- 
fluenced the  customers  on  the  route  not  to  buy  milk  of  the  defend- 
ant, but  of  himself;  but  the  judge  ruled  that  such  evidence  was 
incompetent. 

A  verdict  was  found  for  the  plaintiff;  and  the  defendant  alleged 
exceptions. 

Chapman,  J.^  .  .  .  It  was  competent  to  the  defendant  to  prove 
that  the  note  was  given  as  well  in  consideration  of  a  sale  of  the  good 
will  of  the  milk  route,  and  an  agreement  not  to  go  into  the  business 
which  should  interfere  with  it,  as  of  a  sale  of  the  articles  enumerated 
in  the  bill  of  parcels.  Agreements  of  this  character  are  valid,  and 
are  often  specifically  enforced  in  equity  by  injunction,  and  at  law 
by  actions  for  damages.  Evidence  that  the  plaintiff  has  interfered 
with  the  route  in  the  manner  stated,  would  tend  to  show  that  he 
has  deprived  the  defendant  of  a  part  of  the  consideration  for  which 
the  note  is  given.  It  was  formerly  held  that  such  damages  must  be 
recovered  by  a  cross  action,  and  could  not  be  proved  and  allowed 

^  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 


STATUTE  2  GEO.   II,   c.   22.  247 

in  defence  of  an  action  on  the  note,  by  way  of  recoupment.  But 
the  doctrine  of  recoupment  of  damages  was  fully  established  in  this 
court,  in  Harrington  v.  Stratton,  22  Pick.  510.  See  Burnett  v. 
Smith,  4  Gray,  50.  It  has  since  been  applied  in  numerous  cases, 
and  was  already  well  established  in  New  York.  It  is  an  equitable 
set-off  of  damages  which  ought  to  be  deducted  from  the  plaintiff's 
demand,  and  for  the  recovery  of  which  the  defendant  ought  not  to 
be  turned  round  to  a  cross  action.  The  court  are  of  opinion  that  it 
should  be  applied  to  a  case  like  the  present,  where  the  plaintiff  has 
deprived  the  defendant  of  a  valuable  part  of  the  consideration  of 
the  note  in  suit,  if  the  facts  which  were  alleged  shall  be  proved.^  ^^ 

Statute  2  George  II,  Chapter  22,  Section  13  (1729). 

[16  Statutes  at  Large,  53.) 

And  be  it  further  enacted  by  the  authority  aforesaid,  that 
where  there  are  mutual  debts  between  the  plaintiff  and  defendant, 
or  if  either  party  sue  or  be  sued  as  executor  or  administrator, 
where  there  are  mutual  debts  between  the  testator  or  intestate  and 
either  party,  one  debt  may  be  set  against  the  other  and  such  matter 
may  be  given  in  evidence  upon  the  general  issue,  or  pleaded  in  bar,  x 
as  the  nature  of  the  case  shall  require,  so  as  at  the  time  of  his 
pleading  the  general  issue,  where  any  such  debt  of  the  plaintiff,  his 
testator  or  intestate,  is  intended  to  be  insisted  on  in  evidence, 
notice  shall  be  given  of  the  particular  sum  or  debt  so  intended  to 
be  insisted  on,  and  upon  what  account  it  became  due,  or  otherwise 
such  matters  shall  not  be  allowed  in  evidence  upon  such  general 
issue. - 

>  See  Hasten  v.  Butter,  7  East,  479;   Street  v.  Blay,  2  Barn.  &  Aid.  456; 
Brunson  v.  Martin,  17  Ark.  270;    Stow  v.  Yarwood,  14  111.  424;    Streeter  v. 
Streeter,  43  111.  155;   Reab  v.  McAlister,  8  Wend.  (X.  Y.),  109;   Batterman  v. 
Pierce,  3  Hill   (N.  Y.),  171;    Waterman,  Set-off,  Recoupment  and  Counter-   ^ 
claim,  chap.  X. 

.\s  to  the  extent  of  the  right  to  recoup,  see  Edge  Moor  Iron  Co.  v.  Brown, 
etc.,  Co.,  6  Pennew.  (Del.),  10,  62  Atl.  1054;  Sutherland,  Damages,  4th  ed., 
sec.  168  et  seq. 

Recoupment  is  purely  defensive.  Ward  v.  Fellers,  3  Mich.  281 ;  Sickels  v. 
Pattison,  14  Wend.  (N.  Y.),  257;  Sutherland,  Damages,  4th  ed.,  sec.  186;  34 
Cyc.  760;  19  Encyc.  of  PI.  and  Pr.  810.  But  see  Johnson  v.  White  Mountain 
Creamery  Ass'n,  68  X.  H.  437,  36  Atl.  13,  73  Am.  St.  Rep.  610. 

As  to  the  right  of  a  defendant  to  bring  a  cross  action,  see  Chapter  XIII, 
infra.  —  Ed. 

'  By  its  terms  this  act  was  to  continue  in  force  for  five  years.  The  provi- 
sion as  to  set-off  was  amended  and  made  perpetual  bv  Stat.  8  Geo.  II,  c.  24  — 
Ed. 


248 


PLEADING 


In  Stooke  V.  Taylor,  5  Q.  B.  D.  569,  p.  575,  the  court.  Cock- 
burn,  C.  J.,  said: 

By  the  statutes  of  set-off  this  plea  is  available  only  where  the 
claims  on  both  sides  are  in  respect  of  liquidated  debts,  or  money 
demands  which  can  be  readily  and  without  difficulty  ascertained. 
The  plea  can  only  be  used  in  the  way  of  defence  to  the  plaintiff's 
action,  as  a  shield,  not  as  a  sword.  Though  the  defendant  suc- 
ceeded in  proving  a  debt  exceeding  the  plaintiff's  demand,  he  was 
not  entitled  to  recover  the  excess;  the  effect  was  only  to  defeat  the 
plaintiff's  action,  the  same  as  though  the  debt  proved  had  been 
equal  to  the  amount  of  the  claim  established  by  the  plaintiff  and 
no  more.^ 


Oi/'^l         FREEMAN  v.  HYETT. 
jXf^         King's  Bench.     1762. 
\  [Reported  1  William  Blackstone,  394.] 

Action  for  money  due  for  a  parcel  of  cloth.     Dunning  moved  to 


(y 


stay  the  trial  of  the  cause,  in  order  to  send  a  commission  into 
Portugal  to  establish  a  fact  by  way  of  set-off;  viz.  That  in  a  for- 
mer parcel  of  cloths  sent  to  Portugal,  and  bought  of  the  same  plain- 
tiff, it  appeared,  on  opening  the  bale,  that  they  were  burnt  in  the    ^ 
pressing,  which  had  greatly  lowered  their  value.  /^■■i^A  //.^ff/^^iti^^^ 

Norton,  Solicitor-General,  objected,  that  the  set-off   was   not 

maintainable.     You  might  as  well  set  off  the  damages  which  you 

f    are  entitled  to  recover  for  a  battery:  you  should  bring  your  special 

kr    /action  on  the  case. 

•  *  ^     And  of  that  opinion  was  the  Court,  and  denied  the  motion.^ 

1  But  in  the  United  States,  statutes  generally  allow  a  defendant  in  set-off 
to  recover  an  excess  over  the  plaintiff's  cause  of  action.  Truesdell  v.  Wallis, 
4  Pick.  (Mass.),  63;  34  Cyc.  760;   19  Encyc.  of  PI.  and  Pr.  808.  —  Ed. 

2  See  also  Grant  v.  Royal  Exchange  Ass.  Co.,  5  M.  &  S.  439;  Taylor- 
Stites  Glass  Co.  v.  Manufacturers'  Bottle  Co.,  201  Mass.  123,  87  N.  E.  558; 
Godkin  v.  Bailey,  74  N.  J.  L.  655,  65  Atl.  1032,  9  L.  R.  A.  (n.  s.),  1134;  34  Cyc. 
696. —  Ed. 


r 


WALKER   V.    CLEMENTS  249 


fw4 


WALKER  V.   CLEMENTS. 

Queen's  Bench.     1850. 
(Reported  15  Queen's  Bench,  1046.] 

Assumpsit.  The  declaration  (which  recited  a  writ  issued  31st 
October,  1849)  was  for  work  and  labour  as  an  attorney,  money 
paid,  and  on  an  account  stated. 

Plea  (dated  30th  November,  1849),  among  others:  That  "  plain- 
tiff, before  and  at  the  time  of  the  commencement  of  this  suit,  was, 
and  from  thence  hitherto  hath  been  and  still  is,  indebted  "  to 
defendant  in  &c.  (on  a  promissory  note  and  two  bills  of  exchange, 
and  for  railway  shares  and  certificates  of  owTiership  of  shares  in 
companies,  scrip  certificates,  goods  and  chattels,  sold  transferred 
and  delivered,  money  lent,  money  paid,  money  had  and  received, 
interest,  and  money  due  on  divers  accounts  stated) :  which  sums 
exceeded  &c.;  and  defendant  offered  to  set-off  &c.  (in  the  common 
form) . 

Replication  (dated  8th  December,  1849) :  That  the  said  sup- 
posed debts  and  causes  of  set-off  "  did  not,  nor  did  any  part  thereof, 
arise  or  accrue  at  any  time  within  six  years  next  before  the  com- 
mencement of  this  suit  or  the  pleading  of  the  said  plea."  Verifica- 
tion. 

Special  demurrer,  assigning  causes  which,  so  far  as  regards  the 
decision  of  the  Court,  will  sufficiently  appear  from  the  argu- 
ment. 

Lord  Campbell,  C.  J.  I  think  the  plea  bad.  The  set-off  is 
substituted  for  a  cross  action.  When  are  we  to  suppose  that  cross 
action  brought  ?  Clearly  at  the  time  of  the  commencement  of  the 
plaintiff's  action,  since  a  set-off  not  then  existing  cannot  be  insisted 
upon. 

Coleridge,  J.  I  am  of  the  same  opinion.  A  set-off  must  be 
available  as  a  cross  action  would  be. 

WiGHTMAN  and  Erle  Js.  concurred.   Judgment  for  defendant} 

1  Compare  Mass.  R.  L.  Chap.  174,  sec.  10.  —  Ed. 


iu.>^^'^^ 


^ 


250  pleading 

New  York  Code  of  Civil  Procedure. 

Sec.  501.  The  counterclaim,  specified  in  the  last  section,  must 
tend,  in  some  way,  to  diminish  or  defeat  the  plaintiff's  recovery y., 
and  must  be  one  of  the  following  causes  of  action  against  the 
plaintiff,  or,  in  a  proper  case,  against  the  person  whom  he  repre- 
sents, and  in  favor  of  the  defendant,  or  of  one  or  more  defendants, 
between  whom  and  the  plaintiff  a  separate  judgment  may  be  had 
in  the  action : 

1.  A  cause  of  action,  arising  out  of  the  contract  or  transaction, 
set  forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim, 
or  connected  with  the  subject  of  the  action. . 

2.  In  an  action  on  contract,  any  other  cause  of  action  on  con- 
tract, existing  at  the  commencement  of  the  action..  ^ 

Sec.  495.  The  plaintiff  may  also  demur  to  a  counterclaim,  upon 
which  the  defendant  demands  an  affirmative  judgment,  where  one 
or  more  of  the  following  objections  thereto,  appear  on  the  face  of 
the  counterclaim: 

1.  That  the  court  has  not  jurisdiction  of  the  subject  thereof. 

2.  That  the  defendant  has  not  legal  capacity  to  recover  upon  the 
same. 

3.  That  there  is  another  action  pending  between  the  same 
parties,  for  the  same  cause. 

4.  That  the  counterclaim  is  not  of  the  character  specified  in 
section  five  hundred  and  one  of  this  act. 

5.  That  the  counterclaim  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action. 

Sec.  503.  When  a  counterclaim  is  established,  which  equals  the 
plaintiff's  demand,  the  judgment  must  be  in  favor  of  the  defendant. 
Where  it  is  less  than  the  plaintiff's  demand,  the  plaintiff  must  have 
judgment  for  the  residue  only.  Where  it  exceeds  the  plaintiff's 
demand,  the  defendant  must  have  judgment  for  the  excess,  or  so 
much  thereof  as  is  due  from  the  plaintiff.  .  .  . 

Sec.  509.  Where  the  defendant  deems  himself  entitled  to  an 
affirmative  judgment  against  the  plaintiff,  by  reason  of  a  counter- 
claim interposed  by  him,  he  must  demand  the  judgment  in  his 
answer.  (^  ^ 


\' 


Ck    ,-n  . 


=,f  <:,.~-cn^^=^;— ' 


WREGE    V.    JONES 


(M 


I  WREGE  V.   JONES. 

Supreme  Court  of  North  Dakota.     1904 

[Reported  13  North  Dakota,  267.] 


251 


-.  4j&<x^ 


/(jjf^ 


Young,  C.  J.^     This  is  an  action  for  slander.     The  plaintiff  re- 
covered a  verchct  in  the  siun  of  $500.     The  defendant  has  appealed  . 

from  the  order  denying  his  motion  for  new  trial,  and  also  from  the       /Vivv-^^t-^-i^ 
judgment. 

The  complaint  alleges  that  on  October  3,  1902,  the  defendant, 
in  the  village  of  Hankinson,  in  Richland  county,  in  the  preseiice  of  j 

divers  persons,  four  of  whom  are  named,  falsely  and  maliciously  /D-^fn,^^.-^*^ 
spoke  and  published  of  and  concerning  the  plaintiff  the  following 
false,  malicious,  and  defamatory  words:  "  'You  stole  my  wheat  ' 
(meaning  thereby  that  this  plaintiff  stole  wheat  owned  by  defend- 
ant) .  '  Mr.  Albert  Wrege  stole  my  wheat.  I  will  have  you  both 
arrested  '  (meaning  thereby  that  the  defendant  would  have  this 
plaintiff  and  his  brother  arrested  for  the  alleged  offense)."  The 
answer  interposed  by  the  defendant  consisted  of  (1)  a  general 
denial;  (2)  mitigating  circumstances;  and  (3)  a  counterclaim. 
The  trial  court  held  upon  demurrer  that  the  cause  of  action  set  up 
as  a  counterclaim  did  not  arise  out  of  the  transaction  which  is  the 
foundation  of  plaintiff's  claim,  and  was  not,  therefore,  allowable. 
The  case  was  tried  upon  the  remaining  issues,  with  the  result  above 
stated. 

The  first  error  assigned  is  the  ruling  upon  the  demurrer.  The 
answer  alleged,  by  wa\^  of  counterclaim,  "  that  on  said  October 
3,  1902,  and  at  the  same  time  and  at  the  same  place,  and  as  a  part 
of  the  same  conversation  and  transaction  mentioned  and  referred 
to  in  the  complaint,  and  in  the  presence  of  the  same  persons  who 
are  named  and  mentioned  therein,  the  said  plaintiff  falsely  and 
maliciously  spoke  the  following  false,  slanderous^' and  defamatory 
^words  of,  about  and  concerning  the  plaintiff,  to  ^^^t:  '  Jones,  j^ou 
are  a  damned  robber.'  "  Damages  were  prayed  for  in  the  sum  of 
S3000.  Counsel  for  defendant  urge  that  "  the  cause  of  action  set 
up  in  the  complaint  and  the  cause  of  action  contained  in  the  coun- 
terclaim arose  out  of  one  and  the  same  transaction,"  and  that  for 
this  reason  the  counterclaim  is  within  section  5274,  subd.  1,  Rev. 
Codes  1899,  which  authorizes  one  to  plead  as  a  counterclaim  "  a 
cause  of  action  arising  out  of  the  contract  or  tr'\nsaction  set  forth 

1  A  part  of  the  opinion  holdinfr  that  a  new  trial  should  be  granted  for 
erroneous  exclusion  of  evidence  is  omitted.  —  Ed. 


252 


PLEADING 


in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or  con- 
nected with  the  subject  of  the  action."  We  cannot  agree  that 
the  transaction  out  of  which  defendant's  cause  of  action  arose  is  the 
"  transaction  set  forth  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,"  and  are  therefore  of  opinion  that  the  demurrer 
was  properly  sustained.  The  statute  just  referred  to  is  common  to 
^aTnumber  of  states.  Thus  far  the  courts  have  not  arrived  at  a 
definition  of  the  term  "  transaction,"  as  used  therein,  which  is 
wholly  satisfactory.  It  is  quite  generally  agreed,  however,  that  it 
is  broader  in  meaning  than  the  word  contract,"  and  includes  torts; 
otherwise  it  would  not  have  been  employed.  Probably  the  defi- 
nition given  in  Pomeroy  on  Code  Remedies,  section  774,  is  the 
most  accurate  and  comprehensive,  i.  e.,  "  that  combination  of  acts 
and  events,  circumstances  and  defaults,  which,  viewed  in  one 
aspect,  results  in  the  plaintiff's  right  of  action,  and,  viewed  in 
another  aspect,  results  in  the  defendant's  right  of  action."  The 
fact  that  two  transactions  originate  at  the  same  time  and  place, 
and  between T-he  same  parties,  is  not  the  test.  The  question  in 
such  cases  is,  "  Did  each  cause  of  action  accrue  or  arise  out  of  the 
same  transaction  —  the  same  thing  done  ?  "  Anderson  v.  Hill,  53 
Barb.  239.  It  is  clear  in  this  case  that  they  did  not.  The  act  set 
forth  in  the  complaint  as  the  foundation  of  plaintiff's  claim,  and 
which  gave  rise  to  his  cause  of  action,  was  the  speaking  by  defend- 
ant of  the  defamatory  words  charged  in  the  complaint.  The  act 
which  gave  rise  to  the  defendant's  cause  of  action  was  the  speaking 
by  plaintiff  of  the  defamatory  words  charged  in  the  counterclaim. 
Each  act  was  complete  in  itself  —  a  separate  tort  —  and  consti- 
tuted a  transaction,  within  the  meaning  of  the  above  section.  It 
cannot  be  said  that  the  utterance  of  the  slanderous  words  by  the 
defendant  resulted  in  a  cause  of  action  in  his  favor  for  the  plaintiff's 
tort.  The  latter  arose  from  a  wholly  distinct  act,  namely  plaintiff's 
utterance  of  the  slanderous  words.  There  was  no  single  transac- 
tion, which,  "  viewed  in  one  aspect,"  gave  plaintiff's  right  of  action, 
and,  in  another  aspect,  defendant's  right  of  action.  The  trans- 
actions were  separate.  Our  conclusion  that  one  slander  cannot  be 
set  up  as  a  counterclaim  against  another  slander  is  in  harmony 
with  the  views  of  the  courts  of  New  York  under  the  same  statute. 
Sheehan  v.  Pierce,  70  Hun,  22,  23  N.  Y.  Supp.  1119;  Fellerman  v. 
Dolan,  7  Abb.  Prac.  395.1  _  ,  ^ 

1  Compare  Atlas  Metal  Co.  v.  Miller,  [1898]  2  Q.  B.  500;  Quinn  v.  Hession, 
4  L.  R.  (Ir.),  35;  Macdougall  v.  Maguire,  35  Cal.  274;  Keller  v.  B.  F.  Goodrich 


LOAN    &    TRUST   SAVINGS    BANK   V.    STODDARD  253 


Section  IV. 
Replies  or  Replications. 

LOAN   &   TRUST  SAVINGS   BANK  v.   STODDARD     ;  o**^ 

et  al,  Impleaded  with  HOLCOMB   BROS,  et  al  ^^^T^^Tll-^ 

Supreme  Court  of  Nebraska.     1902.     CfM'^^-''-'^    ^    1  j^Jl »^x* 

[Reported  2  Nebraska,  Unofficial,  486.]  //^   A""*^^  ^  "     0/t 


This  is  an  action  to  foreclose  a  mortgage,  given  as  security  for 
two  notes.  The  defendants,  Holcomb  Bros.,  for  answer  to  the 
petition  alleged,  inter  alia,  a  want  of  consideration  for  the  notes 
and  mortgage.  The  plaintiff  filed  no  reply.  Upon  the  trial  the 
court  found  that  the  plaintiff's  mortgage  was  a  first  lien  on  the 
land  described  in  the  petition  and  awarded  the  plaintiff  a  decree  of 
foreclosure.     The  defendants  appealed.  ^ 

Day,  C.  .  .  .  It  is  now  urged  that,  inasmuch  as  the  plaintiff 
filed  no  reply,  therefore  the  want  of  consideration  for  the  notes  and 
mortgage  stands  admitted  on  the  record.  Without  discussing 
whether  such  a  denial  in  the  answer  to  the  allegations  of  the  petition 
presents  new  matter  calling  for  a  reply,  it  is  sufficient  in  this  case 
to  say  that  upon  the  trial  both  parties  treated  the  consideration  as 
^n.issue  in  the  case.  The  chief  contention  in  the  court  below  was 
over  the  want  of  consideration.  It  is  now  the  settled  rule  of  this 
court  that  where  the  parties  to  an  action  enter  upon  a  trial  and 
treat  the  allegations  of  new  matter  alleged  in  the  answer  as  denied, 
this  court  will  also  treat  them  so,  notwithstanding  no  reply  appears 
Jn  the  record.  Schuster  v.  Carson,  28  Neb.,  612.  In  Missouri 
P.  R.  Co.  V.  Palmer,  55  Neb.,  559,  it  is  said:  "  Where,  in  the  trial 
of  a  cause  both  parties  treat  an  affirmative  defense  as  traversed,  it 
will  be  so  considered  in  this  court  although  the  plaintiff  filed  no 

Co.,  117  Ind.  556,  19  N.  E.  196;  Gutzman  v.  Clancy,  114  Wis.  589,  90  N.  W. 
1081,  58  L.  R.  A.  744.     See  34  Cyc.  706  et  seq. 

As  to  set-off  and  counterclaim  against  the  state  or  a  foreign  sovereign,  see 
Strousberg  v.  Costa  Rica  Republic,  29  W.  R.  125;  South  African  Republic  v. 
La  Compagnie,  [1898]  1  Ch.  190;  State  v.  Arkansas  Brick  &  Mfg.  Co.,  98  Ark. 
125,  135  S.  W.  843,  33  L.  R.  A.  (n.  s.),  376;  People  v.  Dennison,  84  N.  Y.  272. 

As  to  the  modern  English  set-off  and  counterclaim,  see  the  Annual  Practice, 
1915,  p.  377;  Halsbury,  Laws  of  England,  Tit.  "  Set-off  and  Counterclaim  "; 
Odgers,  Pleading,  7th  ed.,  256  et  seq.  —  Ed. 

'  The  statement  of  facts  is  taken  from  the  opinion  of  the  court  and  is 
abridged.     A  part  of  the  opinion  is  omitted.  —  Ed. 


254  PLEADING 

reply   either  before   or   after  judgment."       Minzer  v.   Willman 
Mercantile  Co.,  59  Neb.,  410.  ...  \ 

Hastings  and  Kirkpatrick,  CC,  concur.  Affirmed} 

HoLCOMB,  J.,  took  no  part  in  the  decision. 

New  York  Code  of  Civil  Procedure. 

Sec.  522.   Each    material    allegation    of    the    complaint,    not 
controverted  by  the  answer,  and  each  material  allegation  of  new   \  j^ 
matter  in  the  answer,  not  controverted  by  the  reply,  where  a  reply    \ 
is  required,  must  for  the  purposes  of  the  action,  be  taken  as  true.^ 
But  an  allegation  of  new  matter  in  the  answer,  to  which  a  reply  is 
not  required,  or  of  new  matter  in  a  reply,  is  to  be  deemed  contro- 
verted by  the  adverse  party,  by  traverse  or  avoidance,  as  the  case 
requires. 

Sec.  516.  When  an  answer  contains  new  matter,  constituting  a 
defence  by  way  of  avoidance,  the  court  may  in  its  discretion,  on 
the  defendant's  application,  direct  the  plaintiff  to  reply  to  the  new 
matter.2  .  .  .  -.-,  ^^ >    ■    '^  '^ 


^,M-ii«-*— «^    ^J-'^"*^' 


\ 


I     POTTS  et  al.  v.  THE   POINT  PLEASANT  LAND   CO. 

Supreme  Court  of  New  Jersey.     1885. 

[Reported  47  New  Jersey  Law,  476.] 

Reed,  J.  The  declaration  is  for  breach  of  covenant.  It  sets 
out  a  contract  under  seal,  by  the  terms  of  which  the  plaintiff  was 
to  perform  for  the  defendants  certain  work  in  filling  and  grading 
certain  lots  and  claying  certain  sidewalks  at  Point  Pleasant.  It 
then  declares  that  the  defendants  did  covenant,  in  consideration  of 
the  faithful  performance  of  the  said  work,  to  pay  eighteen  cents  per 
cubic  yard  for  the  sand  or  clay  removed,  the  payment  to  be  made  by 
a  deed  of  real  estate,  by  an  assignment  of  certain  mortgages,  by 
orders  forguano  and  by  the  payment  of  cash. 

'^'  ^See  Ringle  v.  Bicknell,  32  Ind.  369;  Louisville  &  Nashville  R.  R.  Co.  v. 
Copas,  95  Ky.  460,  26  S.  W.  179.  Compare  Denver,  etc.,  R.  R.  Co.  v.  Smock, 
23  Colo.  456,  46  Pac.  681;  Benicia  Ag.  Works  v.  Creighton,  21  Ore.  495,  28 
Pac.  775,  30  Pac.  676.  —  Ed. 

2  Compare  Mass.  R.  L.  chap.  173,  sec.  31;  Comstock  v.  Livingston,  210 
Mass.  581,  97  N.  E.  106. 

For  the  modern  Enghsh  practice  as  to  replies,  see  Rules  of  the  Supre^ne 
Court,  1883,  Order  XXIII.  —  Ed. 


uJkM*^ 


THE    POINT    PLE^ANT   LAND    CO^^      /,  /' ^^C^S.-^— ^-"^ 
/''"/     /^  ,/,-i?-!*,^.*--     y-^--*     .  v    "    fl:.('l      /"       , 

It  than  avers  the  due  performance  of  the  work  on  the  part  of  the 
plaintiffs,  and  the  failure  of  the  defendants  to  perform  their  cove- 
nant to  make  paj'^ment  according  to  the  terms  of  their  contract. 

To  this  declaration  the  defendants  pleaded,  among  others,  the 
plea  that  the  performance  of  the  work  was  a  condition  precedent  to 
the  plaintiffs'  right  to  payment,  and  that  the  plaintiffs  had  not 
performed  the  said  work. 

To  this  plea  the  plaintiffs  replied  that  although  they  tendered 
themselves  ready  and  willing  to  complete  the  said  work,  the  de- 
fendants notified  them  to  remove  from  the  defendants'  land  all  the  ^ 
plaintiffs'  material,  tools  and  working  implements,  by  reason  of 
which  they  were  prevented  from  continuing  said  work  according  | 
to  the  terms  of  the  contract.  To  this  replication  a  demurrer  was 
filed. 

The  point  of  the  demurrants  upon  the  argument  was  that  the 
ground  upon  which  the  plaintiffs  based  their  right  of  action  in  their 
replication,  was  a  clear  departure  from  the  position  taken  by  them 
in  their  declaration. 

The  counsel  for  the  plaintiffs  contended  that  the  replication 

fortified  the  case  made  by  the  declaration,  and  so  was  legitimate. 

The  design  of  a  replication  is  to  put  upon  the  record  some  new 

facts  which  show  that,  notwithstanding  the  existence  of  the  mat- 

Jtefs  pleadecTby  the  defendants,  the  declaration  is  yet  true. 

Thus,  if  plaintiff  declares  upon  a  statute,  and  defendant  pleads 
that  it  is  repealed,  a  replication  that  it  has  been  revived  by  a  sub- 
sequent act,  is  good.  For  the  reviving  act  gives  renewed  effect  to 
the  first,  on  which  the  action  is  founded.     Gould  on  Plead.,  455. 

So,  if  in  trespass  the  defendant  justifies  for  a  distress  damage 
feasant,  the  plaintiff  may  reply  that  the  defendant  afterwards 
converted  to  his  o^^'n  use,  for  this  shows  the  taking  to  be  a  trespass 
ab  initio.     Comyn's  Dig.,  tit.     "  Pleader,"  *[11. 

These  are  obvious  instances  of  a  fortification  of  the  position  first 
taken  by  the  pleader.  But  in  the  two  pleadings  of  the  plaintiffs  in 
the  present  case  it  appears  manifest  that  the  ground  upon  which 
the  plaintiff  rests  his  claim  is  in  each  distinct.  He  assumes  on  each 
that  he  has  a  condition  to  perform  as  a  precedent  to  his  right  to 
recover  compensation.  He  first  says  "  I  performed  it."  He  next 
says  "  I  did  not  perform  it,  but  was  ready  to  do  so,  and  you  hin- 
dered me." 

The  performance  of  such  a  condition,  and  an  excuse  for  not  per- 
forming it,  are  matters  so  distinct  that  good  pleading  recpires  the 
certain  averment  of  that  one  upon  which  the  party  relies.     They 


(LL^-z^ — t^-^ii-^ 


(^u-^ 


are  SO  treated  by  Mr.  Chitty,  he 'giving  the  rules  that  regulate  the 
pleading  of  a  performance  of  conditions  precedent,  and  also  the 
averments  necessary  in  setting  out  an  excuse  of  performance  by 
the  plaintiff.      In  regard  to  the  latter  he  remarks:  "  In  stating  an] 
excuse  for  non-performance  of  a  condition  precedent,  the  plaintiff  / 
must  in  general  show  that  the  defendant  either  prevented  the  per-  ' 
formance  or  rendered  it  unnecessary  to  the  prior  act  by  his  neglect 
or  by  his  discharging  the  plaintiff  from  performance."      Chitty 
on  Plead.,  p.  326. 

But  the  point  involved  here  is  not  new.  Thus,  Mr.  Gould, 
citing  Co.  Litt.  304a,  and  1  Sid.  10,  says:  "If  in  covenant 
broken  the  defendant  pleads  performance  in  general  terms,  and 
the  plaintiff  replies  non-performance  of  a  particular  act,  a  rejoinder 
that  the  defendant  was  ready  to  perform,  and  tendered  perfor- 
mance, and  that  the  plaintiff  prevented  it,  is  a  departure  from  the 
plea;  performance,  and  tender  and  refusal  being  distinct  and  incon- 
sistent grounds  of  defence.  The  matter  rejoined  should  have  been 
pleaded  in  the  first  instance."     Gould  on  Plead.,  455. 

In  the  present  case  the  plaintiffs  rest  their  case  upon  performance 
of  a  preceding  covenant.  In  the  case  mentioned  by  Mr.  Gould  the 
defendant  rested  his  defence  upon  the  performance  of  his  covenant. 

In  neither  case  could  the  parties  in  a  subsequent  pleading  shift  |  In^ 
their  ground  of  attack  or  defence  from  performance  to  an  excusej 
for  non-performance. 

There  should  be  judgment  for  the  defendants,  with  costs. 


0^ 


/     HOWARD   V.  JENNISON.  \j 

King's  Bench.     1696. 

[Reported  1  Salkeld,  223.] 

An  action  on  the  case  for  work  done  was  brought  by  a  tailor,  and 
six  several  promises  laid,  all  upon  the  16th  of  October;  the  defend- 
ant pleaded  injra  cetatem  to  all  generally;  the  plaintiff  replied  as  to 
two  promises,  prcecludi  non,  &c.  quia  the  defendant  was  at  that 
time  of  full  age,  and  as  to  the  rest,  that  they  were  pro  necessario 
vestitu;  hereupon  the  defendant  demurred,  alleging  that  this  was 
repugnant;  that  the  defendant  could  not  at  the  same  time  be  of 
full  age  and  not  of  full  age :  but  the  Court  held.  That  time  was  but  a 
circumstance  in  nowise  material,  nor  part  of  the  issue;  that  a  man 


STEPHEN    ON   PLEADING  257 

is  not  tied  to  a  precise  day  in  his  declaration;  and  if  the  defendant 
force  him  to  vary,  it  is  no  departure.     Judgment  jpro  quer} 

[Stephen,  Pleading,  Williston's  edition,  *  253-*  255.] 

It  has  been  seen  that  the  declarations  are  conceived  in  very 
general  terms;  a  quality  which  they  derive  from  their  adherence  to 
the  tenor  of  those  simple  and  abstract  formulae,  —  the  original 
writs  —  by  which  all  suits  were  in  ancient  times  commenced.  The 
effect  of  this  is,  that,  in  some  cases,  the  defendant  is  not  sufficiently 
guided  by  the  declaration,  to  the  real  cause  of  complaint;  and  is, 
therefore,  led  to  apply  his  plea  to  a  different  matter  from  that  which 
the  plaintiff  has  in  view.  A  newiassignment  is  a  method  of  plead- 
ing to  which  the  plaintiff  in  such  cases  is  obliged  to  resort  in  his 
replication,  for  the  purpose  of  setting  the_def endant  right.  An 
exampFe'stl'all  be  given  in  an  action  for  assault  and  battery.  A  case 
may  occur  in  which  the  plaintiff  has  been  twice  assaulted  by  the 
defendant;  and  one  of  these  assaults  may  have  been  justifiable 
being  committed  in  self-defence,  • —  while  the  other  may  have  been 
committed  without  legal  excuse.  Supposing  the  plaintiff  to  bring 
his  action  for  the  latter,  it  will  be  found,  by  referring  to  the  ex- 
ample formerly  given  of  a  declaration  for  assault  and  battery, 
that  the  statement  is  so  general,  as  not  to  indicate  to  which  of  the 
two  assaults  the  plaintiff  means  to  refer.  The  defendant  may, 
therefore,  suppose,  or  affect  to  suppose,  that  the  first  is  the  as- 
sault intended,  and  will  plead  son  assault  demesne,  as  in  the 
example  supra,  *  p.  190.  This  plea  the  plaintiff  cannot  safely 
traverse;  because,  as  an  assault  was  in  fact  committed  by  the 
defendant,  under  the  circumstances  of  excuse  here  alleged,  the 
defendant  would  have  a  right,  under  the  issue  joined  upon  such 
traverse,  to  prove  those  circumstances,  and  to  presume  that  such 
assault,  and  no  other,  is  the  cause  of  action.  And  it  is  evidently 
reasonable  that  he  should  have  this  right;  for,  if  the  plaintiff  were, 
at  the  trial  of  the  issue,  to  be  allowed  to  set  up  a  different  assault, 
the  defendant  might  suffer  by  a  mistake  into  which  he  had  been  led 
by  the  generality  of  the  plaintiff's  declaration.  The  plaintiff, 
therefore,  in  the  case  supposed,  not  being  able  safely  to  traverse, 

'  A  departure  may  be  taken  advantage  of  on  general  demurrer;  but  not 
after  verdict  by  motion  in  arrest  of  judgment,  j,  Burdick  v.  Kenyon,  20  R.  I. 
498. 

In  some  jurisdictions  objection  may  be  taken  at  the  trial  by  a  motion  to 
exclude  evidence.  Plummer,  Perry  &  Co.  v.  Rohman,  61  Neb.  61,  84  N.  W. 
600.  —  Ed. 


258  PLEADING 

and  having  no  ground  either  for  demurrer,  or  for  pleading  in  con- 
fession and  avoidance,  has  no  course,  but  by  a  new  pleading,  to 
correct  the  mistake  occasioned  by  the  generality  of  the  declaration, 
and  to  declare  that  he  brought  his  action,  not  for  the  first,  but  for 
the  second  assault;  and  this  is  called  a  new  assigmnent.^ 


Section  V. 

Amendments. 
[Stephen,  Pleading,  Williston's  edition,    *8(}-*82.] 

During  the  course  of  the  pleading,  if  either  party  perceives  any 
mistake  to  have  been  committed  in  the  manner  of  his  allegation; 
or,  if,  after  issue  joined  on  demurrer  for  matter  of  form,  he  should 
think  the  issue  likely  to  be  decided  against  him,  he  ought  to  apply, 
without  delay,  for  leave  to  amend.  It  is  proper,  therefore,  now  to 
take  some  notice  of  the  law  of  amendment. 

Under  the  ancient  system,  the  parties  were  allowed  to  correct 
and  adjust  their  pleadings  during  the  oral  altercation,  and  were  not 
held  to  the  form  of  statement  that  they  might  first  advance.  So 
at  the  present  day,  until  the  judgment  is  signed,  in  the  manner  to  be 
afterwards  mentioned,  either  party  is,  in  general,  at  liberty  to 
amend  his  pleading  as  at  common  law;  the  leave  to  do  which  is 
granted  as  of  course,  upon  proper  and  reasonable  terms,  including 
the  payment  of  the  costs  of  the  application,  and  sometimes  the 
whole  costs  of  the  cause  up  to  that  time.  And  the  court  will  allow 
an  amendment  at  common  law,  in  some  cases,  even  after  a  de- 
murrer has  been  argued.  Besides  which,  the  court  has  a  power,  by 
statute,  to  allow  an  amendment  after  judgment  has  been  actually 
signed  and  recorded;  and  of  late,  the  judges  have  been  much  more 
liberal  than  formerly,  in  the  exercise  of  this  discretion.  Amend- 
ments are,  however,  always  limited  by  due  consideration  of  the 
rights  of  the  opposite  party;  and  where,  by  the  amendment,  he 
wouldjbe^put  to  unfair  disadvantage,  it  is  not  allowed. 

^  In  many  jurisdictions  new  assignments  are  no  longer  in  use.  If  the 
plaintiff's  declaration  is  general  and  the  defendant  interposes  an  affirmative 
defense  which  the  plaintiff  conceives  is  applicable  to  a  different  matter  from 
that  on  which  he  intends  to  rely,  the  plaintiff  may  amend  his  declaration. 
McFarlane  v.  Ray,  14  Mich.  4G5.  —  Ed. 


ivt-doGk^ii  '-^-^ 


Ij  mM^ 


3 


^ 


^  o.N^J^'^  \S)^^'^^^ 


y^^ 


JP 


BUDDING   V.    MURDOCH 

FITZPATRICK  v.   GEBHART. 
Supreme  Court  of  Kansas.     1871. 


259 


Valentine,  J.'  . 


[Reported  7  Kansas,  35.] 

.     The  court  properly  allowed  the  plaintiff  -^ 

below  to  amend  the  prayer  of  his  petition,   and  also  properly     ■  v  _^„^^,--^*;*^ 
allowed  the  amendment  to  be  made  by  interlineation. '^  Neither  * 

was  it  an  abuse  of  judicial  discretion.     The  amendment  was  short,  '  "T^ 

and  scarcely,  if  at  all,  material.  Amendments  of  pleadings  may 
be  made  in  three  ways,  subject  to  the  discretion  of  the  court;  first, 
by  interlineation;  second,  by  writing  the  amendment,  and  the 
amendment  only,  on^a  separate  piece  of  paper,  and  referring  to 
the  original;  third,  by^, rewriting  the  original,  and  incorporating 
the  amendment  in  it.^  .  \  j-  -'■"■^'^  ' 


BUDDING   V.   MURDOCH. 
Chancery  Division.     1875. 

[Reported  1  Chancery  Division,  42.] 


%y 


This  was  a  suit  instituted  to  enforce  a  right  claimed  by  the 
Plaintiff  to  the  flow  of  water  along  an  artificial  watercourse.  The 
bill  rested  the  Plaintiff's  title,  1,  on  a  deed;  2,  on  prescription. 

The  cause  now  came  on  to  be  heard  on  motion  for  decree.  It 
appeared  that  both  parties  were  under  some  misapprehension  as 
to  the  contents  of  the  deed  on  which  the  Plaintiff  relied.  The 
Court  was  of  opinion  that  the  title  set  up  by  the  Plaintiff,  both 
under  the  deed  and  by  prescription,  failed.  It  was  then  contended 
that  the  watercourse  had  been  constructed  by  the  Plaintiff  at 
considerable  expense,  with  the  privity  of  a  predecessor  in  title  of 
the  Defendant,  who  had  stood  by  and  acquiesced;  and  that  the 
Plaintiff  was  entitled  to  maintain  the  suit  on  this  ground. 

The  Master  of  the  Rolls  said  that  the  case  now  set  up  by  the 
Plaintiff  was  not  raised  by  the  bill;  and  if  the  suit  had  come  to  a 
hearing  before  the  recent  Act,  the  question  whether  the  Plaintiff 
should  be  allowed  to  amend  would  have  required  great  considera- 
tion, having  regard  to  the  decision  in  Lord  Darnley  v.  London, 

'  A  part  of  the  opinion  is  omitted.  —  Ed. 

^  In  some  jurisdictions  amendment  by  interlineation  is  forbidden  by  statute 
illLXul&^court.     See  1  Encyc.  of  PI.  and  Pr.  642.  —  Ed. 


260  PLEADING 

Chatham,  and  Dover  Railway  Company.  Under  the  circum- 
stances, he  thought  the  new  practice  ought  to  be  apphed,  and  that 
the  Plaintiff  ought  to  have  liberty  to  amend;  and  he  made  an 
order  accordingly,  with,  liberty  for  the  Defendant  to  put  in  a 
further  answer,  and  both  parties  to  go  into  further  evidence.  All 
costs  to  be  reserved  till  the  further  hearing. 


KLIPSTEIX   V.   RASCHEIN. 
Supreme  Court  of  Wisconsin.     1903. 

[Reported  117  Wisconsin,  248.] 

For  a  complaint  plaintiff  stated,  in  effect,  that  during  negotia- 
tions had  by  him  with  defendant  respecting  the  purchase  of  a 
horse  he  asked  defendant  if  the  animal  was  suitable  for  farm  work 
and  would  work  well  in  hauling  heavy  loads,  to  which  answer  was 
made  in  the  affirmative  and  that  defendant  would  warrant  the 
horse  in  that  regard;  that  plaintiff  rehed  upon  such  assurance  and 
bought  the  horse  of  defendant,  pa^dng  him  therefor  $125;  that  the 
animal  was  in  fact  a  balky  horse  and  entirely  unfit  for  use  on  a  farm 
or  for  hauhng  hea\y  loads;  that  defendant  well  knew  such  to  be 
the  case  when  he  made  the  representations  aforesaid;  that  upon 
plaintiff's  discovering  the  facts  in  regard  to  the  true  character  of 
the  horse  he  tendered  the  animal  back  to  defendant  and  demanded 
a  return  of  his  money,  wliich  demand  was  refused,  and  that  plain- 
tiff was  damaged  by  the  breach  of  warranty  alleged  in  the  sum  of 
SlOO,  for  which  he  asked  judgment  with  costs. 

Defendant  answered,  demdng  the  allegations  of  the  complaint 
as  to  the  horse  being  balky  or  being  warranted  to  plaintiff  in  any 
manner.  The  court  construed  the  complaint  as  setting  forth  a 
cause  of  action  to  recover  damages  upon  a  fraudulent  warranty. 
During  the  trial  plaintiff  applied  for  leave  to  strike  out  of  the  com- 
plaint the  allegations  which  in  the  judgment  of  the  court  gave  it  the 
character  of  one  for  the  recovery  of  damages  for  actionable  fraud. 
The  application  was  denied.  The  case,  under  the  rulings  of  the 
court,  against  objections  of  appellant's  counsel,  was  tried  and  sub- 
mitted to  the  jury  as  an  action  sounding  in  tort.  The  verdict  was 
in  defendant's  favor. 

Marshall,  J.^  ...  It  is  claimed  the  court  erred  in  refusing 
appellant's  application  to  strike  out  of  the  complaint  the  allega- 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


MERRILL   V.    PERKINS  261 


tions  showing  that  defendant  falsel}'  represented  the  character  of 
the  horse  with  actual  or  constructive  knowledge  of  the  facts.  To 
sustain  that  cases  are  cited  where,  there  being  two  causes  of  action 
set  out  in  the  complaint,  one  sounding  in  tort  and  one  in  contract, 
and  there  being  no  demurrer  for  misjoinder  of  causes  of  action,  it 
was  held  proper  to  allow  a  recovery  upon  one  of  them  and  to  per- 
mit the  other  to  be  stricken  out  or  disregarded  as  surplusage.  The 
situation  is  different  here.  True,  the  complaint  contains  all  the 
allegations  necessary  to  state  a  cause  of  action  on  contract,  but 
no  such  cause  of  action  was  in  fact  stated  or  attempted  to  be 
stated.  What  appellant's  counsel  desired  was  not  to  strike  out 
^ne  cause  of  action  from  the  complaint  and  leave  another,  but  to 
strike  out  one  part  of  a  cause  of  action,  leaving  the  balance  to  stand 
as  setting  forth  a  cause  of  action  of  an  entirely  different  character, 
—  to  amend  the  complaint  by  changing  the  form  of  the  action. 
That  is  not  permissible.  The  limit  of  the  power  of  the  court  to 
allow  amendments  of  pleadings  will  be  found  fully  discussed  in 
Gates  V.  Paul,  a7ite,  p.  170,  94  N.  W.  55.  The  rule  stated  definitely 
in  Carmichael  v.  Argard,  52  Wis.  607,  609,  9  N.  W.  470,  and 
Post  V.  Campbell,  110  Wis.  378,  382,  85  N.  W.  1032,  governs  the 
subject.  .  .  . 

By  the  Court.     The  judgment  is  affirmed.^ 


'      MERRILL  V.   PERKINS. 
Supreme  Court  of  New  Hampshire.     1879. 
[Reported  59  New  Hampshire,  343.] 

Case,  for  entering  the  house  occupied  by  the  plaintiff  and  her 
husband  and  children,  and  taking  out  the  doors  and  windows,  tear- 
ing up  the  floor,  and  making  a  noise  and  disturbance,  whereby  the 
plaintiff  was  exposed,  frightened,  and  disturbed,  prematurely  deliv- 
ered of  a  child,  and  seriously  injured  in  health.  The  defendant's 
objection,  that  the  plaintiff  cannot  recover  in  this  form  of  action, 
was  overruled.  .  .  .  Verdict  for  the  plaintiff. 

Doe,  C.  J.2  The  objection  to  the  form  of  action  might  have 
been  obvjated  at  the  trial  by  an  amendment  of  the  declaration, 
adding  a/new  count  in  trespass.     Stebbins  v.  L.  Ins.  Co.,  59  N.  H. 

»  See  Anderson  v.  Wetter,  103  Me.  257,  69  Atl.  105,  15  L.  R.  A.  (n.s.),  1003. 
Compare  Bruheirn  v.  Stratton,  supra,  p.  105.  —  Ed. 

*  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed.        / 


262 


U     PLEADING 


1   143.     And  as  the  amendment,  if  made  before  the  trial,  would  not 

I  have  affected  the  trial  or  the  verdict,  it  may  be  made  now  without 

disturbing  the  verdict.     Roulo  v.  Valcour,  58  N.  H.  347.     It  does 

not  appear  to  be  necessary  to  inquire  whether  case,  or  trespass,  is 

the  right  form  of  action.  .  .  . 

When  the  amendment  is  made,  there  will  be 

Judgment  on  the  verdict.^ 
Allen,  J.,  did  not  sit:  the  others  concurred. 


HERBERT  v.   DE   MURIAS   and  ROCK. 

Supreme  Court  of  New  York,  Appellate  Division, 
First  Department.     1906. 

[Reported  115  New  York  Appellate  Division,  453.] 

Appeal  by  the  defendants,  Fernando  E.  De  Murias  and  another, 
from  an  order  of  the  Supreme  Court,  made  at  the  New  York 
Special  Term  and  entered  in  the  office  of  the  clerk  of  the  county 
of  New  York  on  the  7th  day  of  September,  1906,  denying  the 
defendants'  motion  for  leave  to  serve  an  amended  answer. 

Per  Curiam:  As  a  general  rule  a  party  should  be  permitted  to 
put  his  pleading  in  such  shape  as  will  satisfactorily  present  every 
question  affecting  his  interest  in  the  litigation,  and  to  this  end  the 
court  is  disposed  to  use  with  liberality  the  power  conferred  by 
statute^to  j)ermit  amendments  of  pleadings  during  the  progress  of 
the  action.  Muller  v.  City  of  Philadelphia,  113  App.  Div.  92. 
The  exercise  of  this  power,  however,  is  controlled  by  the  considera- 
tion that  a  party  should  not,  by  laches  or  otherwise,  place  his 
opponent  at  an  unfair  disadvantage,  and  for  this  reason  an  amend- 
ment which  otherwise  would  be  freely  allowed  is  often  refused 
because  of  the  laches  of  the  party  moving.  Mere  Jaches,  however, 
are  not  always  an  unanswerable  objection  to  an  amendment, 

1  See  1  Encyc.  of  PI.  and  Pr.  574. 

Review.  If  the  trial  court  allows  an  amendment  when  it  is  beyond  its 
power  to  allow  it,  its  order  is  reviewable.  New  York,  etc.,  Assn.  v.  Remington 
Ag.  Works,  89  N.  Y.  22;   1  Encyc.  of  PI.  and  Pr.  531. 

The  refu.sal  to  allow  a  proper  amendment  on  the  ground  that  the  court  has 
no  power  to  allow  the  amendment,  is  based  on  an  error  of  law  and  is  reviewable. 
Dunnett  v.  Thornton,  73  Conn.  1,  4G  Atl.  158;  Sanger  v.  Newton,  134  Mass. 
308. 

As  to  review  in  other  cases,  see  Home  Ins.  Co.  v.  Overturf,  35  Ind.  App.  361, 
74  N.  E.  47;  Le  Mars  Building  &  Loan  Assn.  v.  Burgess,  129  la.  422,  105  N.  W. 
641;  Fay  v.  Hunt,  190  Mass.  378,  77  N.  E.  502.  —  Ed. 


^1j^!<A 


^ 


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f^Vv.^^'^'''^  ^^'^'^ 


yf^Jud 


WELDON    V.    NEAL  263 


especially  if  no  prejudice  will  arise  therefrom  to  the  party  opposing 
the  motion.  In  the  present  case  the  action  is  for  money  alleged  to 
have  been  obtained  from  plaintiff  by  fraud.  The  defendants  have 
already  served  an  original  and  one  amended  answer,  and  having 
changed  their  attorney,  now  seek  to  serve  a  second  amended  an- 
swer amplifying  their  defense  that  the  plaintiff  by  certain  acts  has 
waived  the  tort  of  which  he  complains.  It  is  true  that  no  very 
cogent  reason  is  given  why  this  defense  was  not  properly  pleaded 
before,  and  the  defendants  have  unquestionably  laid  themselves 
open  to  the  imputation  of  laches.  We  are  unable  to  see,  however, 
that  any  disadvantage  will  come  to  plaintiff  if  the  motion  be 
granted  upon  proper  terjns.  ^The  action  was  commenced  in  April, 
1906,  and  the  amended  answer  served  on  June  fourth.  The  pres- 
ent motion  was  made  on  August  twenty-seventh.  The  action 
has  been  noticed  for  trial  for  the  October  term,  but  has  not  yet 
appeared  upon  the  day  calendar.  The  defendants'  laches  are  not, 
therefore,  very  gross. 

The  order  should  be  reversed,  without  costs,  and  the  motion 
granted  on  condition  that  within  five  days  after  the  entry  and  ser- 
vice of  the  order  to  be  entered  hereon  the  defendants  serve  their 
proposed  second  amended  answer  and  pay  to  plaintiff's  attorney  all 
costs  of  the  action  to  date  and  ten  dollars  costs  of  motion,  the 
cause  to  retain  its  number,  date  of  issue  and  place  upon  the  trial 
calendar. 

Present  —  Ingraham,  McLaughlin,  Clarke,  Houghton  and 
Scott,  JJ. 

Order  reversed,  without  costs,  and  motion  granted  on  conditions 
stated  in  opinion.     Order  filed.^ 

>  WELDON  V.   NEAL. 

Court  of  Appeal.     1887. 
[Reported  19  Queen's  Bench  Division,  394.] 

Appeal  of  plaintiff  from  the  order  of  the  Queen's  Bench  Divi- 
sion (Field  and  Wills,  JJ.)  directing  certain  paragraphs  of  the 
statement  of  claim  to  be  struck  out. 

The  facts  were  as  follows :  — 

»  But  when  by  the  allowance  of  the  amendment  the  plaintiff  is  put  in  a 
worse  position  than  that  in  which  he  would  have  been  placed  if  the  defendant 
had  correctly  pleaded  in  the  first  instance,  the  amendment  will  not  be  allowed. 
Steward  v.  North  Metropolitan  Tramways  Co.,  16  Q.  B.  D.  .5.5(3.  —  Ed. 


t 


:ir-~ 


264 


PLEADING 


4 


-^ 


The  plaintiff  commenced  an  action  for  slander  on  1st  Septem- 
ber, 1883.  At  the  trial  the  judge  nonsuited  the  plaintiff  on  the 
ground  that  the  alleged  slander  was  not  actionable  without  special 
damage,  and  that  the  plaintiff  had  not  alleged  any  special  damage, 
and  refused  to  give  leave  to  amend.  The  plaintiff  subsequently- 
obtained  from  the  Court  of  Appeal  an  order  for  a  new  trial  with 
leave  to  amend  her  statement  of  claim.  On  the  6th  April,  1887, 
she  amended  her  statement  of  claim. 

The  statement  of  claim  as  amended  set  up  in  addition  to  the 
claim  for  slander  fresh  claims  in  respect  of  assault,  false  imprison- 
ment and  other  causes  of  action,  which  at  the  time  of  such  amend- 
ment were  barred  by  the  Statute  of  Limitations,  although  not 
barred  at  the  date  of  the  writ. 

The  Divisional  Court  ordered  the  paragraphs  stating  such  fresh 
causes  of  action  to  be  struck  out  on  the  ground  that  amendments 
ought  not  to  be  allowed  which  would  deprive  the  defendant  of  the 
benefit  of  the  Statute  of  Limitations. 

Lord  Esher,  M.R.  We  must  act  on  the  settled  rule  of  prac- 
tice, which  is  that  amendments  are  not  admissible  when  they 
prejudice  the  rights  of  the  opposite  party  as  existing  at  the  date 
of  such  amendments.  If  an  amendment  were  allowed  setting  up 
a  cause  of  action,  which,  if  the  writ  were  issued  in  respect  thereof 
at  the  date  of  the  amendment,  would  be  barred  by  the  Statute  of 
Limitations,  it  would  be  allowing  the  plaintiff  to  take  advantage 
of  her  former  writ  to  defeat  the  statute  and  taking  away  an  exist- 
ing right  from  the  defendant,  a  proceeding  which,  as  a  general 
rule,  would  be,  in  my  opinion,  improper  and  unjust.  Under  very 
peculiar  circumstances  the  Court  might  perhaps  have  power  to 
allow  such  an  amendment,  but  certainly  as  a  general  rule  it  will 
not  do  so. 

This  case  comes  within  that  rule  of  practice,  and  there  are  no 
peculiar  circumstances  of  any  sort  to  constitute  it  an  exception  to 
such  rule.  For  these  reasons  I  think  the  order  of  the  Divisional 
Court  was  right  and  should  be  affirmed. 

LiNDLEY,  L.  J.  I  am  of  the  same  opinion.  I  do  not  think  it 
would  be  just  to  the  defendant  to  allow  these  amendments,  the 
effect  of  which  would  be  to  deprive  him  of  his  defence  under  the 
Statute  of  Limitations. 

Lopes,  L.  J.  I  am  of  the  same  opinion.  I  think  the  Court 
ought  to  give  all  reasonable  indulgence  with  regard  to  amending, 
antl  I  quite  agree  with  the  rule  that  has  been  laid  down,  viz.,  that, 
however  negligent  or  careless  the  first  omission  and  however  late 


SONTUM    V.    MAHONING    AND    SHENANGO    RAILWAY    CO.         265 

the  proposed  amendment,  the  amendment  should  be  allowed  if  it 
can  be  allowed  without  injustice  to  the  other  side.  But  here  the 
amending  paragrapiis  set  up  causes  of  action  which  were  not  in  the 
original  claim  and  which  are  now  barred  by  the  Statute  of  Limi- 
tations. The  effect  of  allowing  those  amendments  would  be  to 
take  away  from  the  defendant  the  defence  under  that  statute  and 
therefore  unjustly  to  prejudice  the  defendant. 

I  think  the  appeal  should  be  dismissed.        Appeal  dismissed.^ 


M^ 


SONTUM  V.  MAHONING  &  SHENANGO  RY.,  &c.,  CO. 

Supreme  Court  of  Pennsylvania.     1910. 

[Reported  226  Pennsylvania,  230.] 

Trespass  to  recover  damages  for  death  of  plaintiffs'  son.  .  .  . 
Verdict  and  judgment  for  plaintiffs  for  $4,106.85.  Defendants 
appealed.  tUi^/oi^ 

Elkin,  J.2     This  suit  was  brought  within  the  statutory  period  by  r     ^ 

the  father  while  the  name  of  the  mother  was  added  by  amendment  i/^-^-^'*^-  jf. 
more  than  a  year  after  the  expiration  of  the  time  in  which  the  yp^,r^^,>tf'^AJL,  v\ 
action  must  be  instituted  under  the  statutes.       The  first  assign-  ^  ^ 

ment  challenges  the  correctness  of  the  ruling  of  the  court  in  per-  /'X—  '0-'\JL4,a-*-</ 
mitting  the  amendment.     The  right  to  add  the  name  of  a  husband,  tjk     ^y         A~l 

1  See  Mumma  v.  Mumma,  246  Pa.  407,  92  Atl.  504;  25  Cyc.  1305;   1  Encyc,  f    I     T— ^ 

of  PI.  and  Pr.  621;  3  L.  R.  A.  (n.s.),  259;  Ann.  Cas.  1914  C,  p.  1425.  V)  ^U/Vct-*4LXt-*«« 

In  Foster  v.  St.  Luke's  Hospital,  191  111.  94,  60  N.  E.  803,  the  plaintiff,  as  / 
executor,  brought  an  action  to  recover  damages  for  the  death  of  his  testatrix. 
The  declaration  as  originally  filed  failed  to  allege  that  the  deceased  left  a 
husband  or  next  of  kin.  An  amendment  was  filed  more  than  two  years  (the 
statutory  period)  after  the  accident,  alleging  that  the  plaintiff  was  the  sole 
heir  and  beneficiary  of  the  deceased.  It  was  held  that  the  action  was  barred 
by  the  statute  of  limitations. 

In  Stanley  v.  Anderson,  107  Mich.  384,  387,  65  N.  W.  247,  the  court  said: 
"  It  is  manifest  that  the  new  declaration  counts  upon  the  same  contract  and  the 
same  breach  as  was  attempted  to  be  counted  upon  by  the  former  one.  One 
and  the  same  cause  of  action  was  set  up,  or  attempted  to  be  stated,  in  both; 
and  counsel's  contention  must  rest  upon  the  somewhat  technical  proposition 
that,  because  the  first  declaration  was  defective  in  alleging  the  cause  of  action, 
to  the  extent  that  it  did  not  contain  a  sufficient  allegation  of  a  breach,  no 
cause  of  action  was  set  up,  and  of  necessit}'  the  amended  declaration,  which 
did  set  up  a  cause  of  action,  must  state  a  new  and  different  one.  We  think 
this  contention  is  too  technical,  and  that  the  cases  cited  are  so  readily  dis- 
tinguishable in  this  respect  as  not  to  call  for  a  discussion  of  them."  -—  Ed. 

'  Only  a  part  of  the  opinion  is  here  given.  —  Ed. 


266  PLEADING 

or  of  a  wife,  by  way  of  amendment  after  the  expiration  of  the  statu- 
tory period,  if  either  one  had  properly  brought  suit  within  the  time 
hmited,  is  no  longer  an  open  question.  It  has  been  squarely  ruled 
in  several  recent  cases:  Waltz  v.  R.  R.  Co.,  216  Pa.  165;  Holmes 
V.  R.  R.  Co.,  220  Pa.  189;  Bracken  v.  R.  R.  Co.,  222  Pa.  410.^  .  .  . 


COYNE  V.   LAKESIDE  ELECTRIC   RAILWAY  CO. 
;  Supreme  Court  of  Pennsylvania.     1910.  Kkj^' 

'  '^/  [Reported  227  Pennsylvania,  496.]  V 

'4         Per  Curiam.     These  actions  grew  out  of  the  same  accident  and 


7 


^ 


were  tried  together.  The  only  question  raised  by  the  appeals  is 
whether  the  court  erred  in  overruling  the  plaintiff's  motion  to 
amend_the  record  by  striking  out  the  name  of  the  defendant  and 
substituting  the  name  of  another  corporation,  its  lessee.  The 
accident  happened  February  11,  1906.  The  motion  to  amend  was 
made  March  26,  1908,  after  the  testimony  at  the  trial  was  all  in 
'A'  j^'  \  ^^^  i^'  h^*^^  been  shown  that  the  defendant  named  in  the  writ  was 
^^iM^  \  ^^^  lessor  of  the  railroad  and  had  nothing  to  do  with  its  operation. 
The  statute  of  limitations  had  become  a  bar  to  a  new  action.  The 
mistake  was  not,  as  in  Wright  v.  Eureka  Tempered  Copper  Co^ 
206  Pa.  274,  in  bringing  the  right  defendant  into  court  under  a 
wrong  name,  but  in  suing  the  wi'ong  party.  The  well-defined  1  '(A 
limitation  of  the  right  of  amendment  is  that  a  new  cause  of  action 
shall  not  be  introduced  or  new  parties  brought  in  after  the  statute  .. 
of  limitations  has  become  a  bar:  LaBar  v.  Railroad  Co.,  218  Pa. 
261;  Holmes  v.  Railroad  Co.,  220  Pa.  189. 

The  judgment  is  affirmed.^ 


jf  . 


y 


'     MORTON   V.   SHAW  and  Another.  ^ 

Supreme  Judicial  Court  of  Massachusetts.     1906. 

[Reported  190  Massachusetts,  554.] 

Knowlton,  C.  J.^  This  is  an  action  on  a  bond  to  dissolve  an 
attachment.  The  condition  of  the  bond  is  that  "  the  defendants 
shall  pay  to  the  plaintiff  in  said  action  the  amount,  if  any,  which 

1  See  Service  v.  Farmington  Savings  Bank,  62  Kan.  857,  62  Pac.  670.— Ed. 

2  See  Woodward  v.  Ware,  37  Me.  563;  Shaw  v.  Cock,  78  N.  Y.  194.  But 
see  McLaughlin  v.  West  End  St.  Ry.  Co.,  186  Mass.  150,  71  N.  E.  317.  —  Ed. 

'  Only  the  opinion  of  the  court  is  here  given.  —  Ed. 


\A 


Cr  MORTON   V.    SHAW  267 

he  shall  recover  therein,"  etc.  Judgment  has  been  recovered,  and 
the  sureties  set  up,  as  their  only  defence,  that  they  have  been  dis- 
charged from  hability  by  an  amendment  of  the  declaration  in  the 
original  action. 

The  law  applicable  to  their  contention  has  been  fully  considered 
and  settled  in  recent  cases.  Driscoll  v.  Holt,  170  Mass.  262. 
Doran  v.  Cohen,  147  Mass.  342.  Townsend  National  Bank  v. 
Jones,  151  Mass.  454.  Norris  v.  Anderson,  181  Mass.  308.  Diet- 
trich  V.  Wolffsohn,  136  Mass.  335.  In  the  first  of  these  cases  the 
discussion  is  so  full,  and  covers  this  case  so  clearly,  that  it  seems 
superfluous  to  add  anything.  The  statute  is  R.  L.  c.  173,  §  121. 
As  the  amendments  were  allowed  without  notice  to  sureties,  it  is 
open  to  them  to  contest  the  effect  of  the  amendments.  But  if 
their  effect  was  merely  to  put  in  proper  form  the  statement  of  the 
cause  of  action  upon  which  the  action  was  brought,  they  are  bind- 
ing upon  the  sureties,  even  though  they  greatly  change  the  form  of 
statement  of  the  claim,  or  greatly  enlarge  the  amount  claimed 
according  to  the  language  of  the  original  declaration. 

In  the  present  case  the  recovery  was  on  the  second  amended 
count.  That  differs  from  the  original  declaration  in  two  partic- 
ulars. The  original  states  the  claim  as  founded  upon  a  written 
contract  for  the  sale  of  goods.  In  the  opinion  (Morton  v.  Clark, 
181  Mass.  134)  the  court  said:  "  The  plaintiff  declared  on  the 
memorandum  as  a  contract  in  writing,  and  not  on  an  oral  contract 
of  which  the  \vriting  is  a  memorandum.  ...  If  the  declaration 
had  been  upon  an  oral  contract  .  .  .  and  had  treated  the  writing 
as  a  mere  memorandum  not  intended  as  a  formal  contract,  .  .  . 
different  questions  would  have  arisen  which  we  need  not  now  con- 
sider," etc.  The  amendment  to  the  declaration  corrected  this 
error  in  the  pleading. 

There  was  another  error  in  the  declaration  which  was  entirely 
clerical.  The  contract  was  for  the  sale  of  four  thousand  sides  of 
leather,  and  the  declaration  averred  that  the  defendant  delivered 
28,538  sides  of  leather,  and  neglected  and  refused  to  deliver  the 
remaining  11,462  sides  of  leather.  The  fact  was  that  11,462  sides 
had  been  delivered,  and  the  defendants  had  neglected  and  refused 
to  deliver  the  remaining  28,538  sides.  This  mistake  of  statement 
was  corrected  in  the  amended  declaration. 

Such  changes  as  these  do  not  introduce  a  new  cause  of  action. 
They  merely  put  the  pleadings  in  form  properly  to  present  to 
the  court  the  original  cause  of  action  for  which  the  action  was 
brought. 


268  PLEADING 

The  substance  of  the  decision  in  Prince  v.  Clark,  127  Mass.  599, 
is  that  the  amendment  changed  the  cause  of  action,  so  as  to  enable 
the  plaintiff  to  recover  for  that  which  he  did  not  intend  to  include 
when  he  brought  his  action,  but  introduced  later,  through  the 
amendment,  in  order  to  relieve  himself  of  the  consequences  of  a 
mistake  in  another  case,  made  after  his  writ  was  entered.  Al- 
though the  amendment  was  binding  on  the  defendants  in  the  action 
in  which  it  was  made,  it  ought  not  to  have  been  allowed.  This 
decision  does  not  affect  the  law  as  stated  in  the  other  cases  above 
cited.  Judgment  for  the  plaintiff.^ 


FREEMAN  v.   CREECH. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 

[Reported  112  Massachusetts,  180.] 

Writ  of  entry  to  recover  land  in  Boston.  It  appeared  from  an 
agreed  statement  of  facts  that  both  parties  claimed  title  from  one 
Wentworth;  that  one  McNiel  sued  Wentworth  in  an  action  of 
contract,  and  attached  the  land  in  question;  that,  after  the  attach- 
ment, Wentworth  mortgaged  the  premises;  that  the  mortgage 
title  by  assignment  came  to  the  demandant;  that  after  the  making 
of  the  mortgage  McNiel  filed  an  amended  declaration  containing 
additional  counts;  that  it  did  not  appear  upon  the  record  that  the 
original  and  the  amended  declaration  were  for  the  same  cause  of 
action;  that  the  case  was  heard  before  a  referee  upon  the  amended 
declaration;  that  afterwards  McNiel  obtained  judgment  upon  the 
referee's  award;  that  execution  issued  and  was  levied  upon  the 
demanded  premises;  and  that  the  tenant  claimed  title  through 
this  levy. 

It  was  admitted,  "  if  legally  provable  by  oral  testimony,  that 
neither  of  the  claims  set  forth  in  the  third  and  fourth  counts  of  the 
amended  declaration  was  included  in  the  original  declaration,  and 
that  the  referee  included  in  his  award  the  amount  claimed  in  the 
third  count,  and  at  least  a  part  of  the  amount  claimed  in  the  fourth 
count." 

Upon  the  statement  of  facts,  judgment  was  ordered  in  the  Su- 
perior Court  for  the  tenant,  and  the  demandant  appealed. 

/  See  Commonwealth  v.  Baxter  &  Co.,  235  Pa.  179,  84  Atl.  136,  42  L.  R.  A. 
(n'.s.),  484.  Compare  Christal  v.  Kelly,  88  N.  Y.  285;  Mathews  Slate  Co.  v. 
Sweeney,  219  Mass.  285,  106  N.  E.  975.  —  Ed. 


STATUTES  269 

By  the  Court.  The  demandant,  as  subsequent  purchaser,  is 
not  shown  to  have  had  any  notice  of  the  amendment  of  the  dec- 
laration in  the  action  in  which  the  attachment  was  made  under 
which  the  tenant  claims  title.  It  does  not  appear  on  the  face  of 
the  original  and  amended  declarations  that  they  were  for  the  same 
cause  of  action,  and  oral  evidence  is  therefore  admissible  to  show 
whether  they  were  or  were  not.  It  being  admitted,  if  legally 
provable  by  such  evidence,  that  claims  not  included  in  the  original 
declaration  were  included  in  the  amended  declaration,  and  in  the 
award  and  judgment  and  levy  of  execution  on  which  the  tenant 
relies,  the  attachment  was  dissolved,  and  the  levy  gave  no  title,  as 
against  this  demandant.  His  title  is  therefore  better  than  the 
tenant's.  Gen.  Sts.  c.  129,  §  82.  Hill  v.  Hunnewell,  1  Pick.  192. 
Willis  V.  Crooker,  lb.  204,  206,  note.  Wood  v.  Denny,  7  Gray, 
540,  542.  Judgment  for  the  demandant. 

]\IissouRi  Revised  Statutes  (1909). 

Sec.  1848.  The  court  may,  at  any  time  before  final  judgment,  in 
furtherance  of  justice,  and  on  such  terms  as  may  be  proper,  amend 
any  record,  pleading,  process,  entry,  return  or  other  proceedings, 
by  adding  or  striking  out  the  name  of  any  party,  or  by  correcting 
a  mistake  in  the  name  of  a  party,  or  a  mistake  in  any  other  respect, 
or  by  inserting  other  allegations  material  to  the  case,  or  when  the 
amendment  does  not  change  substantially  the  claim  or  defense,  by 
conforming  the  pleading  or  proceeding  to  the  facts  proved.^ 

Sec.  1850.  The  court  shall,  in  every  stage  of  the  action,  dis- 
regard any  error  or  defect  in  the  pleadings  or  proceedings  which 
shall  not  affect  the  substantial  rights  of  the  adverse  party ;  and  no 
judgment  shall  be  reversed  or  affected  by  reason  of  such  error  or 
defect. 

Sec.  1851.  After  final  judgment  rendered  in  any  cause,  the 
court  may,  in  furtherance  of  justice,  and  on  such  terms  as  may  be 
just,  amend  in  affirmance  of  such  judgment  any  record,  pleading, 
process,  entries,  returns  or  other  preceedings  in  such  cause,  by 
adding  or  striking  out  the  name  of  a  party,  or  by  correcting  a 
mistake  in  the  name  of  a  party,  or  a  mistake  in  any  other  respect, 
or  by  rectifying  defects  or  imperfections  in  matters  of  form,  and 
such  judgment  shall  not  be  reversed  or  annulled  therefor. 

'  See  1  Encyc.  of  PI.  and  Pr.  541  el  scq.  —  Ed. 


270  pleading 

The  New  Jersey  Practice  Act  (1912) 

Sec.  23.  No  civil  suit  or  proceeding  in  any  court  of  common  law 
shall  fail  or  be  dismissed  on  the  ground  that  the  plaintiff  or  any 
party  therein  has  mistaken  the  remedy  or  procedure,  if  the  court 
in  which  the  matter  is  pending  shall  have  jurisdiction  to  grant  the 
remedy  by  any  procedure;  but  in  such  case,  the  court  shall,  upon 
terms,  order  the  writs,  pleadings  and  other  proceedings  to  be  so 
amended,  or  new  writs,  pleadings  or  other  proceedings  to  be 
respectively  so  issued,  filed  or  taken,  that  the  court  may  com- 
pletely and  finally  hear  and  determine  the  whole  matter  in  con- 
troversy between  the  parties  and  grant  the  proper  remedy. 

Sec.  24.  In  addition  to  the  present  powers  of  amendment,  the 
court  may,  upon  terms,  permit,  before  or  at  the  trial,  the  state- 
ment of  a  new  or  different  cause  of  action  in  the  complaint  or 
counterclaim. 


\ 

0 

Section  1 3^  V 

>-       Trials  at  Nisi  Prim  and  at  Bar. 
[Stephen,  Pleading  (Williston's  ed.),  *87-*89.] 

In  ancient  times  and  before  the  introduction  of  the  nisi  prius 
clause,  the  trial  used  always  to  take  place  in  the  court  itself  at 
Westminster,  and  this  is  still  indicated  by  the  language  of  the 
venire,  which  directs  the  sheriff  to  summon  the  jury  to  appear 
there,  and  there  only.  But  from  a  very  remote  period  this  course 
of  proceeding  has  been  disused,  except  in  some  few  cases,  to  be 
presently  noticed.  The  trial,  in  modern  practice,  generally  takes 
place  before  the  judge  or  judges  of  assize  and  nisi  prius,  instead  of 
the  judges  of  the  court  of  Westminster;  and  hence  the  record  of  the 
proceedings  made  up  for  trial  is  usually  made  up  with  a  nisi  prius 
clause,  as  in  the  preceding  example,  and  is  denominated  The  Nisi 
Prius  Record.  This  record  is  delivered  to  the  judges  of  assize 
and  nisi  prius  as  their  commission  for  the  trial  of  the  cause,  and 
also  serves  for  their  guidance  as  to  the  nature  of  the  issue  to  be 
tried.  The  trials  before  these  judges,  called  trials  at  nisi  prius, 
now  take  place  in  London  and  Westminster  several  times  in  the 
course  of  each  term,  and  also  during  a  considerable  part  of  each 
vacation;  in  every  other  county  they  are  held  twice  a  year,  and 
alwaj^s  in  time  of  vacation.  The  justices  of  assize  and  nisi  prius 
for  trials  in  London  and  Middlesex  consist  of  the  chief  justices  of 
the  three  courts  respectively,  each  trying  only  the  issues  from  his 
own  court.  For  trials  in  the  other  counties  they  consist  of  such 
persons  as  are  appointed  for  the  purpose  by  temporary  commission 
from  the  crovvTi,  among  whom  are  usually,  for  each  circuit,  two  of 
the  judges  of  the  superior  courts,  the  whole  kingdom  being  at  pres- 
ent divided  into  seven  circuits  for  the  purpose. 

Though  the  trial  by  jury  is  thus,  in  general,  had  at  nisi  prius, 
this  is  not  universally  the  case;  for  in  causes  of  great  difficulty  and 
consequence,  these  inquests  are  allowed  to  be  taken  before  the  four 
judges  in  the  superior  court,  in  which  the  pleading  took  place,  — 

271 


272  TRIAL 


as  in  the  ancient  practice.      The  proceeding  is  then  technically 

said  to  be  a  trial  at  bar,  by  way  of  distinction  from  the  trial  at  nisi  ■. 

prius.     In  these  cases  the  record  is,  of  course,  made  up  for  trial,  v 

without  any  nisi  prius  clause,  and  the  distringas  directs  the  jury  ' 

to  appear  in  the  superior  court  only.  £ 

i 

\  Section  II.  '"•• 

^  Challenges. 

";  [Smith,  Action  at  Law  (2d  ed.),  107-109.] 

We  will  now  suppose  that  the  jury  have  been  summoned,  and  ^ 
are  in  attendance,  and  the  cause  called  on  (as  it  will  be  if  properly  ^ 
entered)  in  its  due  turn.  If  no  motion  be  made  to  put  off  the  trial,  '^ 
and  the  plaintiff,  being  ready,  is  not  forced  to  withdraw  his  record,  v,  \ 
the  first  step  taken  is  to  impanel  and  swear  the  jury.  The  jurors  - 
are  called  over  and  sworn,  and,  as  they  are  called  over,  may,  in  the 
case  of  a  common  jury,  if  either  party  object  to  them,  or.  any  of 
-  them,  be  challenged.  Challenges  are  either  to  the  arraij,  ov  to  the 
~^'^^^olls.  Challenges  to  the  array  are  exceptions  to  the  Entire  panel, 
in  consequence  of  some  partiality  imputed  to  the  sheriff  or  other 
officer  who  arrayed  it.  Challenges  to  the  polls  are  exceptions  to 
particular  jurors,  and  are  of  four  kinds:  First,  Propter  honoris 
respectum,  as,  if  a  lord  of  parliament  were  to  be  impaneled: 
Secondly,  Propter  defectum,  as,  if  one  of  the  jurors  be  an  infant, 
alien,  idiot,  or  lunatic,  or  have  not  a  sufficient  estate:  Thirdly, 
Propter  affectum,  or  for  partiality,  and  this  is  either  principal,  i.  e., 
carrying  with  it  manifest  ground  of  suspicion,  or  to  the  favor.  A 
challenge  is  principal  when  the  juror  is  related  within  the  ninth 
degree  to  either  party,  or  has  been  arbitrator,  or  is  interested  in 
the  cause,  or  has  an  action  depending  with  one  of  the  parties,  or 
has  taken  money  for  his  verdict,  or  formerly  been  a  juror  in  the 
same  cause,  or  is  master,  servant,  counsellor,  steward,  or  attorney 
to,  or  of  the  same  society  or  corporation  with,  one  of  the  parties; 
all  these  are  principal  causes  of  challenge,  which,  if  true,  cannot  be 
overruled,  for  jurors  must  be  omni  exceptione  majores.  A  challenge 
to  the  favor  is  grounded  only  on  some  probable  cause  of  suspicion, 
as  acquaintance,  or  the  like,  the  validity  of  which  is  determined  by 
triors;  these,  if  the  first  juror  be  challenged,  are  two  indifferent 
persons  named  by  the  Court;  if  they  find  one  man  indifferent  he 
shall  be  sworn,  and  he  with  the  two  triors  shall  try  the  next,  and 


'4^ 


GARDNER   V.    TURNER  273 


when  another  is  found  indifferent  and  sworn,  the  two  trioTB  shall 
be  superseded,  and  the  two  first  sworn  on  the  jury  shall  try  the 
rest.  Fourthly,  Propter  delictum;  this  species  of  challenge  may 
take  place  when  the  juror  is  tainted  by  some  crime  or  misdemeanor 
which  affects  his  credit. 


GARDNER  v.   TURNER. 
Supreme  Court  of  New  York.     1812. 
[Reported  9  Johnson's  Reports,  260.] 

A  MOTION  was  made  in  behalf  of  the  defendant,  for  judgment  as 
in  case  of  nonsuit,  for  not  proceeding  to  trial  in  this  cause,  at  the 
last  circuit  in  Rensselaer  county. 

It  appeared  that  after  the  cause  had  been  twice  passed  in  the 
calendar  of  causes  without  being  brought  on,  it  was  again  called, 
and  the  jury  were  about  to  be  impaneled,  when  the  plaintiff's 
attorney  presented  a  challenge  to  the  array,  which  stated  that  the 
clerk  of  the  county,  his  deputy  or  agent,  instead  of  drawing  out 
of  the  box  containing  the  names  of  jurors,  thirtj^-six  names,  drew 
out  the  number  of  seventy-two  names,  which  he  put  in  a  list,  and 
then  selected  and  marked  thirty-six  of  the  jurors,  so  drawn,  and 
directed  the  sheriff  of  the  county  to  summon  the  thirty-six  jurors, 
whose  names  were  so  marked  and  designated,  for  the  circuit  court 
and  oyer  and  terminer,  and  the  others  for  the  court  of  common 
pleas,  and  the  sheriff  accordingly  summoned  the  thirty-six  jurors 
so  designated,  for  the  circuit. 

The  attorney  for  the  defendant  stated  to  the  judge,  that  the 
facts  alleged  in  the  challenge  were  untrue,  and  offered  to  take  issue, 
if  the  judge  thought  the  challenge  ought  to  be  received,  or  sufficient 
to  prevent  the  trial  of  the  cause.  The  judge  refused  to  quash  the 
venire,  or  pass  the  cause,  on  account  of  the  challenge,  and  no  issue 
in  fact  was  taken  thereon.  The  plaintiff's  attorney  then  declined 
to  bring  on  the  cause. 

In  support  of  the  motion,  the  affidavits,  also,  of  the  clerk  and  his 
deputy  were  read,  denying  the  facts  stated  in  the  challenge  to  the 
array  made  by  the  plaintiff's  attorney. 

Per  Curiam.  The  defendant  moves  for  judgment  as  in  case  of  a 
noasuit  for  plaintiff's  default,  in  not  proceeding  to  trial  at  the  last 
circuit  court,  in  Rensselaer  county,  and  he  is  entitled  to  the  effect 
of  his  motion,  if  the  plaintiff  has  been  in  default.     The  motion  is 


274  TRIAL 

resisted  on  the  ground  that,  at  the  circuit,  the  plaintiff  challenged 
the  array,  for  a  supposed  misconduct  in  the  clerk,  in  dra\ving  out 
seventy-two  names,  and  designating  thirty-six  of  them  to  be  sum- 
moned as  jurors  to  that  circuit.  This  challenge  was  overruled  by 
the  judge,  but  the  plaintiff  declined  to  proceed  to  trial. 

Either  party  has  a  right  to  challenge  the  array;  and  partiality, 
or  some  default  in  the  sheriff  or  his  under  officer  who  arrayed  the 
panel,  are  good  causes  of  challenge.  2  Tidd,  779.  If  the  facts 
alleged  in  the  challenge  are  denied  to  be  true,  two  triors  are  ap- 
pointed by  the  court,  out  of  the  panel,  Co.  Litt.  158,  or,  perhaps, 
any  two  individual  persons  named  by  the  court.  If  the  trioi'S  pro- 
nounce the  causes  of  challenge  unfounded,  the  trial  proceeds.  If 
the  facts  are  admitted,  but  are  deemed  insufficient,  the  court  ad- 
judges on  them,  and  either  quashes  the  array,  or  overrules  the 
challenge.  Since  our  statute  authorizing  the  clerk  to  array  the 
jury,  a  challenge  lies  to  it,  for  partiality,  or  default  in  the  clerk, 
who,  for  many  purposes,  is  substituted  for  the  sheriff,  in  selecting 
and  arraying  the  jury.  The  facts  set  forth  in  the  challenge 
amounted,  if  true,  to  a  default  in  the  clerk,  in  forming  the  array, 
and  the  defendant  ought  to  have  joined  issue  on  the  challenge; 
and  if  the  triors  had  found,  that  the  jury  was  not  thus  arrayed, 
then  the  cause  must  have  proceeded,  or  the  plaintiff  would  have 
been  in  default.  The  challenge  should  not  have  been  overruled, 
and  as  it  is,  the  plaintiff  is  not  chargeable  with  a  default  in  not  pro- 
ceeding to  trial,  for  he  had  a  right  to  the  challenge,  and,  if  well 
founded,  it  would  be  a  sufficient  cause  for  not  going  to  trial. 

It  is  now  admitted  that  the  facts  stated  in  the  challenge  are  un- 
founded; and  could  we  believe  that  it  was  interposed  merely  to 
delay  and  interrupt  the  defendant,  we  ought,  now,  perhaps,  to 
consider  it  as  no  excuse  for  not  proceeding;  this  we  are  not  au- 
thorized to  do,  but  are  bound  to  consider  it  interposed  on  informa- 
tion then  received.  Motion  denied.^ 

1  See  Vanauken  v.  Beemer,  1  South.  (N.  J.),  364;  Moore  v.  Navassa  Guano 
Co.,  130  N.  C.  229,  41  S.  E.  293;  Munshower  v.  Patton,  10  Serg.&  R.  (Pa.),  334, 
in  which  it  was  held  that  the  challenge  should  be  allowed.  See  also  Neal  v. 
Delaware,  103  U.  S.  370,  2G  L.  ed.  567. 

See  Commonwealth  v.  Walsh,  124  Mass.  32;  Maffett ;;.  Den,  1  Halst.  (N.  J.), 
228;  UUman  v.  State,  124  Wis.  602,  103  N.  W.  6,  in  which  the  3hallenge  was 
not  aUowed.  See  also  Martin  v.  Texas,  200  U.  S.  316,  50  L.  ed.  497,  26  S.  Ct. 
338. 

For  the  common-  law  practice  as  to  challenge  to  the  array,  see  King  v. 
Edmunds,  4  Barn.  &  Aid.  471.  —  Ed. 


/ 


SCHMIDT    V.    THE    CHICAGO    AND    NORTHWESTERN    RY.    CO.      275 


SCHMIDT  V.  THE  CHICAGO  AND  NORTHWESTERN  RY. 

CO.  etal. 

Supreme  Court  of  Illinois.     1876. 
[Reported  83  Illinois,  405.] 

This  was  an  action  on  the  case,  by  Louisa  Schmidt,  against  the 
Chicago  and  Northwestern  Railway  Company  and  the  city  of 
Chicago,  to  recover  damages  for  the  death  of  Frederick  Schmidt, 
the  plaintiff's  intestate,  caused  by  the  negligence  of  the  defendants, 
as  was  claimed.  A  trial  was  had,  resulting  in  a  verdict  and  judg- 
ment in  favor  of  the  defendants,  to  reverse  which  this  appeal  was 
taken. 

Walker,  J.^  It  is  first  urged  that  the  court  erred  in  permitting 
each  defendant  to  challenge  peremptorily  three  jurors.  The 
statute,  chap.  110,  sec.  49,  p.  781,  provides,  that  "In  all  civil 
actions,  each  party  shall  be  entitled  to  a  challenge  of  three  jurors, 
\\ithout  showing  cause  for  such  challenge."  This  provision  has 
been  in  force  since  1827,  if  not  longer,  and,  as  we  understand,  dur- 
ing all  that  time  it  has  been  the  general  practice,  and  so  understood 
by  the  entire  profession,  that  each  side  to  the  case,  without  refer-  \  <>  / 
ence  to  the  number  of  persons  in  each,  in  all  civil  cases,  have  but 
three  peremptory  challenges;  and  this  is  true  whether  there  be  one 
or  a  number  of  persons  plaintiff  or  defendant. 

In  the  case  of  Cadwallader  v.  Harris,  76  111.  370,  this  court  held, 
that  "  the  word  '  party,'  when  applied  to  the  defendant,  can  only 
means  the  person  or  persons  named  as  defendant  or  defendants  in 
the  judgment."  The  definition  given  to  the  word  as  defined  by 
lexicographers,  is,  a  plurality  of  persons:  as,  a  political  party;  a 
select  company  invited  to  an  entertainment;  a  company  made  up 
for  a  given  occasion;  in  military  affairs,  a  detachment  or  a  small 
number  of  troops,  etc.  Thus  it  is  seen  that  the  word  is  applied  as 
well  to  a  number  of  persons  as  to  a  single  individual. 

The  provision  in  the  Criminal  Code  is,  that  every  person  ar- 
raigned for  any  crime,  etc.,  shall  be  admitted  to  challenge,  etc. 
Here,  we  have  very  different  language  from  that  used  in  the  Prac- 
tice Act  governing  civi'  suits.  And  this  difference  seems  too 
marked  to  have  been  accidental.  It  must  have  been  intended  to 
produce  a  different  practice  in  the  two  classes  of  cases.  In  criminal 
proceedings,  each  person,  when  arraigned,  whether  alone  or  with 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


276 


TRIAL 


others,  is  to  have  the  challenges  specified;  and  in  civil  cases,  the 
plaintiff  or  plaintiffs  three  peremptory  challenges,  and  the  defend- 
ant or  defendants  a  Uke  number.  Hence  we  regard  the  practice, 
as  unquestioned  for  half  a  century  or  more,  to  be  a  proper  construc- 
tion of  the  statute,  and  too  firmly  established  to  be  shaken.  .  .  . 

Judgment  reversed} 


■y 


TRULLINGER  v.   WEBB. 

Supreme  Court  of  Indiana.     1851, 

[Reported  3  Indiana,  198.] 

Blackford,  J.^  This  was  an  action  of  trespass  qiiare  clausum 
fregit,  brought  by  Webb  against  Trullinger.  The  gravamen  is,  that 
the  defendant,  with  force  and  arms,  broke  and  entered  two  certain 
coal-banks  or  veins  of  coal  of  the  plaintiff,  situate  on  the  east  half 
of  the  north-west  quarter  of  section  thirty-one,  township  nineteen 
north,  range  eight  west,  in  Fountain  county,  Indiana,  and  dug 
out,  &c. 

The  defendant  pleaded  not  guilty.  Verdict  and  judgment  for 
the  plaintiff. 

The  first  error  assigned  is,  that  the  Court  improperly  overruled 
a  challenge  to  one  of  the  jurors. 

The  bill  of  exceptions,  on  that  subject,  is  as  follows:  The  defend- 
ant challenged  Jacob  Kinney,  one  of  the  jurors,  for  the  following 
cause,  to-wit,  that  said  juror,  on  being  interrogated  by  the  defend- 
ant, without  being  sworn  to  answer  questions,  disclosed  the  fact 
that  he  was  related  to  the  plaintiff  in  the  following  degree  —  by 
marriage  with  the  plaintiff's  niece;  and  the  said  juror,  after  being 
sworn  to  try  said  cause,  repeated  that  said  relationship  existed, 
without  being  sworn  to  that  fact;  whereupon  the  defendant  moved 
the  Court  to  discharge  said  juror,  which  motion  was  overruled, 
and  the  juror  permitted  to  be  sworn  in  chief,  and  serve  on  the  jury. 


^f^uccord 
V\  465. 


Stone  V.  Segur,  11  Allen  (Mass.),  568;   Bryan  v.  Harrison,  76  N.  C.  360, 
But  see  Stevens  v.  Union  R.  R.  Co.,  26  R.  I.  90,  58  Atl.  492,  66  L.  R.  A. 
Compare  Cornell-Andrews  Smelting  Co.  v.  Boston  &  Prov.  R.  R.  Corp., 
202  Mass.  585,  89  N.  E.  118;  Waggoner  v.  Dodson,  96  Tex.  6,  68  S.  W.  813. 
See  Thomp.son,  Trials,  2d  ed.,  sec.  46. 

On  the  question  of  right  to  peremptory  challenges  in  civil  actions  in  the 
absence  of  statutory  provisions,  see  Creed  v.  Fisher,  9  Exch.  472.  —  Ed. 
*  A  part  of  the  opinion  is  omitted.  —  Ed, 


HUFNAGLE    V.    DELAWARE    &    HUDSON    COMPANY 


277 


in  said  cause.     To  the  overruling  of  which  motion  the  defendant 
excepts, 

.^We  have  no  doubt  but  that  thejcause  of  challenge  was  sufficient. 
LordColceV  language,  on  the  subject,  is  as  follows:  ^ffinity  or 
alliance  by  marriage  is  a  principal  challenso,  and  equivalent  to 
consanguinity,  when  it  is  Ijctwcen  cither  of  th(^  parties,  as  if  the 
~j)l;iii^tiff  or  (Icfcndant  marry  the  daughter  or  cousin  of  the  juror,  or 
tlie  juror  marry  the  daughter  or  cousin  of  the  plaintiff  or  defendant, 
ajKrihe^samFcontihuei,  or  issue  be  had.     Coke  Litt.  157. 

The  plairrtiff 'contends  that  the  juror,  when  questioned  as  to  the 
cause  of  the  challenge,  should  have  been  sworn.  There  is  no  doubt 
but  that  the  plaintiff  might  have  objected  to  the  examination  of 
the  juror  without  oath;  but  the  plaintiff,  by  permitting  the  ques- 
tions to  be  put  to  the  juror,  and  answered  by  him,  without  requir- 
ing him  to  be  sworn,  waived  the  objection.  The  Circuit  Court, 
instead  of  permitting  the  juror  to  be  sworn  on  the  jury,  should 
have  sustained  the  challenge.  ,  ,  , 

Per  Curia?}}.  —  The  judgment  is  reversed  with  costs.  Cause 
remanded,  &c.^ 


HUFNAGLE  v.   DELAWARE  &  HUDSON   COMPANY. 

Supreme  Court  of  Pennsylvania.     1910. 

[Reported  227  Pennsylvania,  476.] 

MoscHZiSKER,  J.2  .  .  .  In  the  calling  of  the  jury  counsel  for  the 
plaintiff  challenged  two  of  the  panel  for  cause,  alleging  that  they 
were  employed  by  the  defendant  company.  The  court  sustained 
the  challenge  stating:  ''  Taking  it  as  a  fact  that  the  only  ground 
for  challenge  for  cause  is  that  these  two  jurors  are  simply  em- 
ployees, one  a  miner  and  the  other  a  division  superintendent  of  some 
of  the  collieries  of  the  defendant  Company,  the  court  is  of  opinion 
that  the  challenge  should  be  sustained."  While  no  Pennsylvania 
case  with  facts  precisely  like  the  one  under  consideration  has  been 
called  to  our  attention,  yet  the  general  principle  is  laid  down  in  our 
cases  that  no  person  should  be  permitted  to  serve  on  a  jury  who 
stands  in  any  relation  to  a  party  to  the  cause  that  would  "  carry 
\\ith  it  prima  facie  evident  marks  of  suspicion  of  favor,"  as  where 

>  As  to  disqualification  of  jurors  for  relationship  or  affinity,  see  Hardy  v. 
Sprowle,  32  Me.  310;  Bigelow  v.  Sprague,  140  Mass.  425,  5  N.  E.  144.  —  Ed.' 
*  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed, 


278  TRIAL 

a  litigant  is  in  a  position  where  "  he  might  exercise  a  control  over 
the  juror,"  such  as  the  relation  of  master  and  servant:  Pipher  v. 
Lodge,  16  S.  &  R.  214;  Harrisburg  Bank  v.  Forster,  8  Watts,  304; 
Cummings  v.  Gann,  52  Pa.  484.  In  the  present  case  the  trial  judge 
applied  the  rule  to  the  relation  of  employer  and  employee,  and  in 
this  there  was  no  error.  .  .  . 

The  assignments  of  error  are  all  overruled,  and  the  judgment  is 
affirmed.^ 


MURCHISON    NATIONAL   BANK   v.    DUNN   OIL   MILLS 
COMPANY  and  BARNES. 

Supreme  Court  of  North  Carolina.     1909. 

[Reported  150  North  Carolina,  683.] 

Walker,  J.^  .  .  .  The  defendants,  having  exhausted  their  per- 
emptory challenges,  objected  to  a  juror,  Samuel  Bear,  who  ad- 
mitted that  he  is  a  stockholder  in  the  plaintiff  bank.  The  court, 
upon  evidence,  found  that,  notwithstanding  the  fact  of  his  being  a 
stockholder,  he  was  "  a  fair  and  unbiased  juror,"  and  overruled  the 
challenge.  In  this  ruling,  we  think,  there  was  error.  It  is  very 
true,  the  cause  of  challenge  is  not  one  of  those  specified  in  the 
statute,  but  they  are  merely  cumulative,  and  it  was  not  the  inten- 
tion of  the  Legislature  to  repeal  the  fundamental  principle  of  the 
common  law  forbidding  ajDerson  to  sit  in  judgment  when  his  own 
interests  are  involved.  Whether  there  are  any  circumstances 
"which  will  justify  a  departure  from  this  elementary  rule  by  reason 
of  the  necessity  of  the  case,  we  need  not  consider,  as  no  such  neces- 
sity arose  in  the  trial  of  the  present  action.  The  only  question 
presented  is,  was  the  juror  competent  to  sit  in  the  case  ?  He  was  a 
stockholder  of  the  plaintiff  bank,  and  therefore  had  a  direct 
pecuniary  int(M'('st  ui  the  result  of  the  trial.  This  cannot  well  be 
questioned.  He  was  therefore  made  a  judge  in  his  own  cause 
without  any  sufficient  reason  in  law  to  sustain  the  ruling  of  the 
court.  Whether  he  was  actually  biased  or  not  is  immaterial. 
Suppose  a  plaintiff  in  a  case  is  called  as  a  juror.  Could  we  hesitate 
to  declare  his  incompetency  ?     The  difference  between  such  a  case 

1  Compare  Georgia  Railroad  and  Banking  Co.  v.  Tice,  124  Ga.  459,  52  S.  E. 
916,  4  Ann.  Cas.  200;  Murphy  v.  Southern  Pac.  Co.,  31  Nev.  120,  101  Pac.  322, 
21  Ann.  Cas.  502;  Sansouver  v.  Glenlyon  Dye  Works,  28  R.  I.  539,  68  Atl.  545. 
—  Ed. 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


MURCHISON  NAT.  BANK  V.  DUNN  OIL  MILLS  CO.  279 

and  the  one  before  us,  where  the  juror  is  the  holder  of  stock  in  the 
plaintiff  bank,  is  one  that  relates,  not  to  the  fact,  but  to  the  degree 
of  interest.  .  .  . 

The  principle  as  applicable  to  a  stockholder  is  clearly  and 
strongly  stated  in  Page  v.  Railroad,  21  N.  H.  438,  as  follows:  "  The 
juror,  who  owned  stock  in  the  Concord  and  Claremont  road,  was, 
therefore,  by  virtue  of  this  contract,  directly  interested  in  the  result 
of  the  cause,  which  he  assisted  to  try.  His  interest  was  probably 
very  trifling  in  amount,  and  may  not  have  influenced  his  judgment 
at  all  on  the  question  of  damages.  But  the  principle  is  extremely 
well  settled  that  any,  even  the  smallest,  degree  of  interest  in  the 
question  penchng  is  a  decisive  objection  to  a  juror."  Citing  Hes- 
keth  V.  Braddock,  3  Burrows,  185(3;  Hawkcs  v.  Kennebeck,  7  Mass. 
464;  Wood  v.  Stoddard,  2  Johns.  (N.  Y.),  194.  The  authorities 
are  quite  uniform  to  the  effect  that  a  stockholder  is  not  a  competent 
juror  if  the  corporation  in  which  he  is  a  stockholder  is  a  party  to  the 
action.  Railroad  r.  Howard,  20  Mich.  18;  Fleeson  v.  Savage,  3 
Nevada,  157;  Silvis  v.  Ely,  3  Watts  and  Serg.  (Pa.),  420;  Essex  v. 
McPherson,  64  111.  349;  Railroad  v.  Hart,  60  Ga.  550.  See,  also, 
Zimmerman  v.  State,  115  Ind.  129;  Railroad  v.  Barnes,  40  Mich. 
383;  Dimes  v.  Canal,  3  H.  L.  Cases,  759.  It  was  held  that,  by  the 
common  law,  a  stockholder,  on  account  of  his  interest  in  the  cor- 
poration, could  not  be  a  competent  witness  for  it.  Porter  v.  Bank, 
19  Vermont,  410;  McAuley  v.  York  Co.,  6  Cal.  80.  In  Silvis  v. 
Ely,  supra,  Rogers,  J.,  said:  "  The  first  error  (assigned)  is  in  re- 
jecting a  person  because  he  was  a  stockholder  and  director  in  the 
Farmers  Bank  of  Reading.  Interest  is  a  principal  cause  of  chal- 
lenge, and  for  that  reason  the  juror  was  incompetent  in  a  cause  in 
which  the  bank  had  an  interest."  In  this  case  the  defendants 
joined  in  the  challenge,  as  thej^  had  the  right  to  do,  and  the  oil 
company  can  avail  itself,  on  this  appeal,  of  the  error  of  the  court 
in  overruling  the  challenge.  It  has  been  compelled  to  try  the  case 
with  a  juror  in  the  box  to  whom  it  had  objected  and  who  was  in- 
competent to  serve.  The  erroneous  ruling  of  the  judge  as  to  the 
competency  of  the  juror  compels  us  to  order  a  new  trial  in  the 
appeal  of  the  oil  company.  New  Trial} 

^  As  to  the  effect  of  relationship  of  a  juror  to  a  stockholder  of  a  corporation 
which  is  a  party  to  the  action,  see  Stone  v.  Monticello  Constr.  Co.,  135  Ky.  6.59, 
i  17  S.  W.  369,  40  L.  R.  A.(n.  s.),  978,  21  Ann.  Cas.  640.  See  further  Moore  v. 
Farmers'  Mut.  Ins.  Assoc,  107  Ga.  199,  33  S.  E.  70;  Walter  v.  Louisville  Ry. 
Co.,  150  Ky.  652,  150  S.  W.  824,  43  L.  R.  A.  (n.s.),  126.  —  Ed. 


1/1 


f/ 


280  TRIAL 

BLEVINS,  by  his  next  friend  v.  THE   ERWIN   COTTON 

MILLS. 

Supreme  Court  of  North  Carolina.     1909. 

[Reported  150  North  Carolina,  493.] 

Action  to  recover  damages  for  personal  injury,  caused  by 
alleged  negligence  of  defendant  company,  tried  before  Jones,  J., 
and  a  jury,  at  October  Term,  1908,  of  Durham. 

Plaintiff  objected  to  a  juror  because  he  was  an  employee  of 
defendant    company;     objection    overruled;     plaintiff    excepted. 
The  juror  was  then  challenged  peremptorily;    the  challenge  was 
allowed.^  .  .  . 
f^  Hoke,  J.,  after  stating  the  case:  We  have  carefully  considered 

the  exceptions  noted  in  the  record,  and  find  no  reversible  error  to 
plaintiff's  prejudice.      It  is  very  generally  held  that  an  employee 
is  an  incompetent  juror  for  the  trial  of  a  cause  involving  the  rights 
r  \  or  interests  of  the  employer,  and  the  plaintiff's  objection  should 

have  been  sustained.  Railroad  v.  Mitchell,  63  Ga.  173;  Railroad 
V.  Mask,  164  Miss.  738.  But  the  juror  was  challenged  peremp- 
torily, and  it  does  not  appear  that  the  plaintiff's  rights  were  in 
any  way  prejudiced  by  this  ruling  of  the  court.  We  have  uni- 
formly held  that  this  right  of  challenge  is  given  to  afford  a  party 
litigant  fair  opportunity  to  remove  objectionable  jurors,  and  was 
not  intended  to  enable  them  to  select  a  jury  of  his  own  choosing. 
In  State  v.  Gooch,  94  N.  C.  987,  the  doctrine  is  stated  as  follows: 
"  The  right  to  challenge  jurors  is  not  a  right  to  select  such  as  the 
prisoner  may  desire,  but  is  only  the  right  to  take  off  objectionable 
jurors  and  to  have  a  fair  jury  to  decide  the  cause."  .  .  . 

The  judgment  for  defendant  is  therefore  affirmed. 

No  error. '^ 

^  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 

2  See  Stowell  v.  Standard  Oil  Co.,  139  Mich.  18,  102  N.  W.  227;  Burnett  v. 
B.  &  M.  R.  R.  Co.,  16  Neb.  332,  20  N.  W.  280.  —  Ed. 


r\ 


^ 


DAVEY   V.    THE    CITY   OF   JANESVILLE  281 

DAVEY  V.   THE   CITY   OF  JANESVILLE. 
Supreme  Court  of  Wisconsin.     1901. 
[Reported  111  Wisconsin,  628.] 

Bardeen,  J.^  Several  jurymen  who  were  residents  and  taxpayers 
in  the  city  of  Janesville  were  asked  whether  the  fact  that  they 
might  be  called  upon  to  pay  a  part  of  any  judgment  recovered  by 
plaintiff  would  influence  their  action  in  arriving  at  a  verdict.  They 
answered  that  it  would  not.  Defendant's  counsel  argue  that  this 
kind  of  an  examination  might  have  a  tendency  to  cause  jurors  to  ; 

lean  towards  the  plaintiff's  side  of  the  case,  in  order  to  prove  that 
they  were  not  affected  by  their  slight  financial  interest  in  the  result. 
At  common  law  the  authorities  are  uniform  that  taxpayers  of  a 
city,  in  an  action  against  it,  might  be  excluded  from  the  jury  ex 
mero  motu,  or  upon  challenge  for  this  cause,  on  the  ground  that  they 
might  be  responsible  for  a  ratal)le  proportion  of  whatever  verdict 
might  be  rendered  against  the  city,  and  to  that  extent  pecuniarily 
interested  in  the  result  of  the  suit.  Thompson  &  M.,  Juries,  §  179. 
This  rule  has  been  changed  by  statute  in  most  states,  probably  on 
the  ground  that  the  interest  is  so  inconsiderable  as  not  to  be  likely 
to  influence  individual  action.  We  see  no  reason  why  a  plaintiff, 
who  is  the  most  likely  to  be  affected  by  the  interest  of  the  juryman, 
may  not  make  the  inquiries  mentioned,  with  a  view  of  establishing 
a  foundation  for  the  exercise  of  the  right  of  peremptory  challenge, 
if  for  no  other  purpose.  The  fear  that  such  examination  would  be 
likely  to  arouse  a  tendency  to  lean  the  other  way  is  more  imaginary 
than  real.  ... 

By  the  Court.  —  The  judgment  is  affirmed.' 

*  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 

*  As  to  what  questions  are  improper  as  tending  to  prejudice  jurors,  see  Blair 
V.  McCormack  Constr.  Co.,  123  N.  Y.  App.  Div.  30,  107  N.  Y.  Supp.  750, 
affirmed,  195  N.  Y.  521,  88  N.  E.  1115;  Putnam  v.  Pacific  Monthly  Co.  (Ore., 
1913),  130  Pac.  986,  45  L.  R.  A.  (n.s.),  338.  See  further  Maize  v.  Sewell,  4 
Blackf.  (Ind.),  447;  Thompson,  Trials,  2d  ed.,  sees.  102,  103. 

For  the  effect  of  a  juror's  residence  in  a  city  or  town  which  is  a  party,  see 
Hesketh  v.  Braddock,  3  Burr.  1847;  Kentucky  Wagon  Mfg.  Co.  v.  City  of 
LouisviUe,  97  Ky.  548,  31  S.  W.  130;  Hildreth  v.  City  of  Troy,  101  N.  Y.  234, 
4  N.  E.  559,  54  Am.  Rep.  686;  and  cases  and  statutes  cited  in  Thompson, 
Trials,  2d  ed.,  sec.  63.  Compare  Boston  v.  Baldwin,  139  Mass.  315,  1  N.  E. 
417  (member  of  city  council  a  juror  in  case  to  which  the  city  is  a  party).  —  Ed. 


282 


TRIAL 


EASTMAN    V.    COMMISSIONERS    OF    BURKE    COUNTY. 

Supreme  Court  of  North  Carolina.     1896. 

[Reported  119  North  Carolina,  505.] 

Faircloth,  C.  J.^  This  is  an  action  for  possession  of  a  part  of 
the  court-house  square  in  Burke  county.  The  plaintiff  made  a 
motion  to  have  the  cause  removed  to  another  county,  on  the 
ground  that  the  subject  of  the  action  is  county  property,  and  that 
every  juror  in  the  county  was  interested  as  a  taxpayer. 
^  The  same  principle  was  considered  in  Johnson  v.  Rankin,  70 
N.  C.  550,  and  the  motion  was  overruled.  No^ judge  or  juror  can 
serve  in  an  action  in  which  he  is  interested,  but  tliemterestoTa 
man  because  of  his  residence  in  a  county  or  town  is  too"remote  an^ 
indirect.  Such  a  rule  would  disqualify  every  judge  or  justice  of 
the  peace  to  try  an  action  in  the  county  or  town  in  which  he  resided. 

Affirmed? 


\^ 


\>- 


1 


SPEAR  et  al.   v.   SPENCER. 
Supreme  Court  of  Iowa.     1848. 

[Reported  1  G.  Greene,  534.] 


^  Kinney,  J.  This  was  an  action  of  trespass,  tried  at  the  Septem- 
ber term  of  Jones  County  district  court,  1847.  It  appears  from 
the  bill  of  exceptions  that  upon  the  day  preceding  the  trial,  a 
criminal  cause  was  tried,  in  which  the  plaintiffs  in  error  were 
convicted  for  an  assault  with  intent  to  commit  a  bodily  injury. 
It  also  appears  from  the  bill  of  exceptions  that  the  action  of  tres- 
pass was  based  upon  the  same  facts,  involving  in  the  issue  the 
same  transactions  as  those  tried  and  determined  in  the  criminal 
cause,  upon  which  the  defendants  had  been  found  guilty. 

An  objection  was  made  to  six  of  the  jurors,  by  the  defendants, 
alleging  their  incompetency  upon  the  ground  that  they  were  jurors 
in  the  trial  upon  the  indictment,  and  had  ('X])r('sscd  through  their 
verdict  their  opinion.      These  jurors  were  placed  upon  their  voir 
dire,  and  being  informed  that  the  civil  cause  was  in  relation  to  the 

*  The  statement  of  facts  is  omitted.  —  Ed. 

2  Compare  Wilson  v.  Wapello  County,  129  la.  77,  105  N.  W.  363,  6  Ann. 
Cas.  958;  Big  Sandy  Ry.  Co.  v.  Boyd  County,  125  Ky.  345,  101  S.  W.  354; 
Watson  V.  DeWitt  County,  19  Tex.  Civ.  App.  150,  46  S.  W.  1061.  —  Ed. 


SPEAR   V.    SPENCER 


283 


same  facts  as  the  one  which  they  had  tried,  said  that  they  had  not 
formed  or  expressed.f^ny  opininn- 

Whercupon  the  court  annulled  the  objection  to  the  jurors,  and 
the  cause  was  tried,  anda  verdict  of  guilty  returned  against_the__ 
defendants, 

~~The  action  of  the  court  in  overruling  this  objection  is  assigned 
for  error. 

The  counsel  for  defendantsin  error  insist  thaJL-as  the  jurors 
broughFthemselves  within  tTietest,  by  stating  under  oath  that 
they  had  not  f  ormedorexpressed  anyopinion  tniihg^case,  that  they 
-wera^ompefent  jiTmrs!  This  is  a  rule  which  has  been  universally 
adopted  in  our  courts,  the  object  of  which  is  to  satisfy  the  court 
that  the  jurors  have  neither  formed  nor  expressed  any  opinion,  and 
are,  therefore,  free  from  bias,  feeling,  or  prejudice.  While,  there- 
fore, we  would  not  innovate  upon  this  well-established  practice, 
still  we  cannot  but  conclude  that  in  this  case  there  w^as  no  necessity 
for  the  court's  resorting  to  this  test,  as  it  must  have  been  apparent 
that  the  jurors  could  not  thus  free  their  minds  from  those  feehngs 
of  prejudice  and  disfavor,  which  the  testimony,  arguments,  and 
verdict  of  an  exciting  criminal  cause  must  have  produced. 

If  the  six  jurors  were  competent,  then  the  entire  panel  that 
tried  and  convicted  the  same  defendants  in  the  criminal  prosecu- 
tion was  a  competent  panel  in  the  civil  action  depending  upon  the 
same  facts  and  proof;  and  as  the  jury  in  a  criminal  cause  must  be 
satisfied  beyond  a  reasonable  doubt  of  the  guilt  of  the  defendants, 
before  they  are  authorized  to  return  a  verdict  of  "  Guilty,"  and  as 
in  a  civil  cause  the  preponderance  of  testimony  forms  the  basis  of 
the  verdict,  it  appears  to  us  that  a  verdict  against  the  defendants 
in  a  civil  cause,  depending  upon  the  same  facts  as  those  upon  which 
they  had  been  convicted  upon  on  indictment,  "svould  be  inevitable, 
providing  both  are  tried  by  the  same  jury. 

It  should  be  a  primary  object  with  the  court,  in  the  administra- 
tion of  justice,  to  preserve  the  purity  of  the  jury  box,  and,  if  possi- 
ble, to  prevent  persons  from  sitting  as  jurors  upon  the  rights  and 
liberties  of  men,  where  prejudice,  feeling,  or  preconceived  opinions, 
are  to  influence  a  verdict,  which  ought  always  to  be  impartial  and 
the  legitimate  result  of  law  and  evidence. 

While  the  competency  of  jurors  is  left  to  the  discretion  of  the 
court,  it  ought  always,  in  order  to  give  the  parties  the  benefit  of  an 
impartial  trial,  to  prevent  those  men  from  becoming  jurors,  who, 
it  appears,  have  formed  an  opinion,  or  whose  minds  are  corrupted 
with  improper  prejudice  and  feeling,  although  they  may  say  upon 


284  TRIAL 

oath  that  they  are  free  from  these  disabihties.  Without  this  salu- 
tary check,  the  purity  of  jury  trials  cannot  be  preserved,  nor  the 
rights  of  parties  properly  maintained. 

In  the  case  before  us,  six  of  the  jurors  who  had  tried  and  con- 
victed the  defendants  upon  an  indictment  involving  the  same 
questions  and  facts,  were  permitted  to  sit  as  jurors^  and  as  we  think^ 
it  was  impossible  for  them  not  to  have  formed  an  opinion  upon  the 
same  matter  involved  in  the  issue  at  law  (although  they  may 
innocently  have  thought  differently),  yet  we  are  fully  satisfied 
that  they  were  incompetent  jurors,  and  that  it  should  have  been 
so  ruled  by  the  court. 

The  judgment  of  the  court  below  is  reversed,  and  a  venire  de  novo 
awarded.^ 


WILSON  V.  THE  STATE. 

Court  of  Errors  and  Appeals  of  New  Jersey.     1897. 

[Reported  60  New  Jersey  Law,  171.] 

David  Wilson  was  convicted  of  murder  in  the  first  degree,  in 
November,  1896,  in  the  Morris  county  Oyer  and  Terminer  and 
sentenced  to  be  executed. ^  .  .  . 

Van  Syckel,  J.  The  grounds  relied  upon  for  the  reversal  of  the 
judgment  in  this  case  are: 

First.  The  refusal  of  the  trial  court  to  sustain  challenges  to 
jurors.  .  .  . 

The  question  in  relation  to  the  challenge  of  jurors  is  presented 
as  follows : 

"  Juror  Peter  Cook,  challenged  to  the  favor,  having  been  duly 
sworn,  testified  as  follows: 

"  Direct  examination  by  Mr.  Quayle. 

"  Q.   Where  do  you  live  ? 

"A.   Budd'sLake. 

"  Q.    Have  you  formed  any  opinion  in  this  case  ? 

"A.    I  have. 

1  Compare  People  v.  Mol,  137  Mich.  692,  100  N.  W.  913,  68  L.  R.  A.  871, 
4  Ann.  Cas.  960;   Hunt  v.  City  of  Columbia,  122  Mo.  App.  31,  97  S.  W.  955. 

As  to  how  far  a  knowledge  of  the  facts  afTects  the  competency  of  a  juror,  see 
State  V.  Gcier,  111  la.  706,  83  N.  W.  718;  Burhngton  &  M.  River  R.  R.  Co,  v. 
Beebe,  14  Neb.  463,  16  N.  W.  747;  State  v.  Stentz,  30  Wash.  134,  63  L.  R  A. 
807.  —  Ed. 

*  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  and  the  dissent- 
ing opinion  of  Garrison,  J.,  are  omitted.  —  Ed. 


WILSON    V.    THE    STATE  285 

"  Q.    What  is  that  opinion  ? 

"  A.  Well,  my  opinion  is  he  ought  to  be  hung,  according  to  the 
papers  —  what  I  have  seen  in  the  papers. 

"  Q.  Well,  do  you  think  that  evidence  could  convince  you  to 
the  contrary  if  produced  here  on  the  witness-stand  ? 

"  A.  Well,  if  they  have  got  clean  proof  of  it  they  might;  then  I 
might  be  convinced. 

"  Q.    What  do  you  think  ? 

"  A.  Well,  if  they  have  got  evidence  enough  to  prove  he  is  not 
guilty,  why,  then,  of  course  I  will  have  to  go  according  to  the 
evidence;  but  in  my  own  mind  I  possess  an  opinion,  according  to 
the  papers,  that  he  ought  to  be  hung. 

"  Q.  And  you  have  already  given  expression  to  that,  have  you  ? 
Would  it  take  more  than  the  ordinary  amount  of  evidence,  then, 
to  convince  you  to  the  contrary  ? 

"  A.  Well,  I  don't  know  really;  it  would  have  to  be  quite  strong 
evidence  to  convince  me  anyway. 

"  Q.    Quite  strong  ? 

''A.   Yes. 

"  Q.    Stronger  then  the  ordinary  amount  of  evidence  ? 

"A.   Yes,  sir. 

"  Q.    Have  you  any  prejudice  on  account  of  his  color  ? 

*'A.   Not  at  all. 

"  Q.    Or  general  appearance  ? 

"  A.   No  shape  or  manner. 

"Q.    That 'sail. 

"  Cross-examination  by  the  prosecutor. 

"  Q.  If  the  evidence  on  the  part  of  the  state  should  fail  to  prove 
the  case  against  him,  as  it  has  been  stated  from  which  your  impres- 
sion has  been  formed,  would  you  still  feel  as  you  do  ? 

"A.  Well,  I  don't  know  really  how  I  could;  if  the  state  failed  to 
prove  him  guilty,  I  could  not  fetch  out  a  verdict  that  he  was  guilty. 

"  Q.  Then  you  feel  that  you  could  consider  the  evidence  that 
may  be  produced  here  and  weigh  it,  and  upon  that  evidence  decide 
whether  he  is  guilty  or  not  ? 

"A.   Yes,  sir. 
Q.    And  if  the  state  fails  to  prove  the  case  against  him,  you 
would  not  then  feel  that  he  should  be  convicted  ? 

"  A.   Oh,  no;  no,  I  could  not. 

"  The  Court  —  The  challenge  is  overruled." 

Since  the  trial  of  the  case  of  State  v.  Spencer,  it  has  been  the  ^ 
accepted  law  of  this  state  that  it  is  not  a  ground  of  principal  chal-  | 


286  TRIAL 

/     lenge  to  a  juror  that  he  has  expressed  an  opinion  on  the  matter  to 

( .  be  tried,  if  it  was  not  done  through  malice  or  ill-will. 

,  '  -    In  that  case,  reported  in  1  Zab.  196,  Chief  Justice  Hornblower 
says:    "  A  declaration  of  opinion  to  disqualify  a  juror,  therefore, 
1^'      must  be  such  an  one  as  implies  malice  or  ill-will  against  the  prisoner, 
v'^         thereby  showing  that  the  person  challenged  does  not  stand  indif- 
ferent between  the  state  and  him." 

This  declaration  was  approved  without  any  qualification  by  our 
Supreme  Court,  in  an  opinion  delivered  by  Chief  Justice  Green,  in 
State  V.  Fox,  1  Dutcher,  566. 

This  question  was  again  raised  in  Moschell  v.  State,  24  Vroom, 
498,  and  the  rule  adopted  in  the  cases  above  cited  was  inflexibly 
adhered  to. 

We  are  of  opinion  that  the  practice  in  this  respect,  which  has  so 
long  prevailed  in  our  courts,  is  well  founded  and  wise,  and  that  no 
departure  from  it  should  be  sanctioned. 

The  juror  challenged  in  this  case  disclaimed  malice  or  ill-will, 
and  there  is  nothing  in  his  examination  which  rendered  him  subject 
to  a  successful  challenge,  and  it  was  therefore  properly  over- 
ruled.^ .  .  . 

For  affirmance  —  Depue,  Gummere,  Ludlow,  Van  Syckel, 
Dayton,  Hendrickson,  Nixon.     7. 

For  reversal^  —  The  Chancellor,  Collins,  Dixon,  Gannon, 
Lippincott.     5. 

1  See  State  v.  Willis,  71  Conn.  293,  41  Atl.  820;  Commonwealth  v.  Webster, 
5  Cush.  (Mass.),  295,  52  Am.  Dec.  711;  Abbot  v.  People,  86  N.  Y.  460;  Scrib- 
ner  v.  State,  3  Okla.  Crim.  Rep.  601,  108  Pac.  422,  35  L.  R.  A.  (n.s.),  985;  Com- 
monwealth V.  Crossmire,  156  Pa.  304,  27  Atl.  40;  State  v.  Meaker,  54  Vt.  112. 

As  to  the  necessity  that  an  opinion  be  expressed  or  declared  before  it  renders 
the  juror  disquahfied  on  a  challenge  for  principal  cause,  see  Boardman  v.  Wood, 
3  Vt.  570;   Thompson  &  Merriam,  Juries,  sec.  206. 

As  to  incompetency  for  bias,  see  Chicago  &  Alton  R.  R.  Co.  v.  Adler,  56  111. 
344;  Commonwealth  v.  Knapp,  9  Pick.  (Mass.),  496;  Theobald  v.  St.  Louis 
Transit  Co.,  191  Mo.  395,  90  S.  W.  314;  Chesapeake  &  Ohio  Ry.  Co.  v.  Smith, 
103  Va.  326,  49  S.  E.  487.  —  Ed. 

2  The  dissent  was  not  based  on  the  question  of  the  competency  of  the  juror. 
—  Ed. 


SEARLE    V.    ROMAN    CATHOLIC    BISHOP    OF   SPRINGFIELD        287 

SEARLE  V.  ROMAN  CATHOLIC  BISHOP  OF 
SPRINGFIELD. 

Supreme  Judicial  Court  of  Massachusetts.     1909. 
[Reported  203  Massachusetts,  493.] 

Knowlton,  C.  J.^  .  .  .  Exception  was  taken  by  the  defendant  to 
the  ruling  of  the  judge  at  the  request  of  the  plaintiff,  that  no  person 
of  the  Roman  Catholic  faith  should  sit  as  a  juror  in  these  cases. 
Under  this  ruling  two  jurors  were  excluded  from  the  panel,  one  a 
resident  of  Northampton  and  the  other  a  resident  of  South  Hadley. 
The  ruling  was  made  on  the  ground  that  the  defendant  is  the  Roman 
Catholic  Bishop  of  Springfield,  a  corporation  sole  under  the  St. 
1898,  c.  368,  who  holds  the  title  to  the  real  estate  in  trust  for  the 
Roman  Catholic  church,  and  that  these  excluded  jurors  have  an 
interest  in  the  suit  analogous  to  that  which  taxpayers  have  in  a 
suit  against  the  city  or  town  in  which  they  reside.  It  is  not  con- 
tended and  it  could  not  successfully  be  contended  that  holding  the 
same  religious  belief  as  one  of  the  parties,  or  affiliation  with  him  in 
the  same  church,  would  disqualify  a  person  from  sitting  as  a  juror  ' 
in  his  case.  The  application  of  such  a  doctrine  would  be  unjust  / 
and  impracticable.  Commonwealth  v.  Buzzell,  16  Pick.  153. 
Purple  V.  Horton,  13  Wend.  1.  Barton  v.  Erickson,  14  Neb.  164. 
Smith  V.  Sisters  of  Good  Shepherd,  27  Ky.  Law  Rep.  1170. 

The  real  estate  held  by  the  defendant  is  in  the  town  of  East- 
hampton,  and  it  was  bought  as  a  site  for  a  church  edifice.  The 
excluded  jurors  were  not  taxpayers  in  that  town,  and  it  may  be 
assumed  that  they  were  not  members  of  the  parish  that  was  ex- 
pected to  use  the  church.  The  ruling  applied  to  all  jurors  of  the 
Roman  Catholic  faith,  without  reftrence  to  their  residence,  or  to 
any  close  affiliation  wth  the  local  church.  Has  every  person  of 
the  Roman  Catholic  faith  in  the  diocese  of  the  bishop  of  Spring- 
field a  pecuniary  interest,  of  which  the  court  can  take  notice,  in 
every  church  owned  by  the  defendant  in  every  part  of  the  diocese  ? 
We  are  of  opinion  that  he  has  not.  It  does  not  appear,  and  we 
have  no  reason  to  suppose,  that  every  Roman  CathoHc  living  in  a 
remote  part  of  the  diocese  can  be  affected  pecuniarily  by  a  small 
loss  or  gain  of  the  bishop  as  owner,  in  connection  with  the  erection 
of  a  Roman  Catholic  church  in  Easthampton. 

Under  the  St.  1898,  c.  368,  the  defendant's  holding  of  property 
is  "  for  the  religious  and  charitable  purposes  of  the  Roman  Catho- 

*  The  statement  of  facts  and  a  part  of  the  oiMiiion  are  omitted.  —  Ed. 


288  TRIAL 

lie  Church."  In  the  R.  L.,  c.  36,  §§  44-46,  it  is  strongly  implied 
that  there  is  a  difference  in  the  trusts,  and  in  the  beneficiaries, 
among  churches  in  different  places,  and  that  the  members  of  a  par- 
ticular parish  and  those  directly  connected  with  the  church  therein 
have  different  pecuniary  relations  to  the  church  there  from  those 
of  the  same  faith  who  live  in  a  different  part  of  the  same  diocese. 
Upon  the  record  before  us  this  ruling  of  the  judge  appears  to  be 
wrong.  See  Burdine  v.  Grand  Lodge  of  Alabama,  37  Ala.  478; 
Delaware  Lodge  v.  Allmon,  1  Penn.  (Del.),  160. 

The  remaining  question  is  whether  the  error  was  prejudicial  to 
the  legal  rights  of  the  defendant.  The  manner  of  impaneling  jurors 
is  prescribed  by  the  R.  L.,  c.  176,  §  25.  The  names  of  those  sum- 
moned as  jurors  are  written  on  ballots  and  placed  in  a  box,  and, 
after  the  ballots  are  shaken  up,  'the  clerk  draws  them  one  by  one 
in  succession  until  twelve  are  drawn.  Apart  from  challenges, 
"  the  twelve  men  so  drawn  .  .  .  shall  be  the  jury  to  try  the  issue," 
etc.  The  order  of  the  judge  was  a  violation  of  the  statutory  pro- 
vision, and  of  the  defendant's  right  to  have  the  excluded  men  sit 
as  jurors  unless  challenged  by  the  plaintiff. 

The  case  was  tried  by  other  qualified  jurors,  and  it  is  argued 
that  the  defendant  was  not  injured  by  the  order.  Under  the 
R.  L.,  c.  176,  §  32,  no  irregularity  in  the  drawing,  summoning,  re- 
turning or  impaneling  of  jurors  is  sufficient  to  set  aside  the  verdict, 
unless  the  objecting  party  was  injured  thereby.  In  general  it  may 
be  assumed  that  all  duly  qualified  jurors,  against  whom  there  can- 
not be  a  successful  challenge  for  cause,  will  consider  and  try  a  case 
properly.  But  a  man  may  have  affiliations  and  friendships,  or 
prejudices  and  habits  of  thought  which  would  be  hkely  to  lead^him 
to  look  more  favorably  for  the  plaintiff,  or  less  favorably  for  him, 
upon  a  case  of  a  particular  claL,s,  or  upon  one  brought  by  a  particu- 
lar person  or  a  member  of  a  particular  class  of  persons,  than  would 
the  average  juror,  even  though  his  peculiarities  are  not  sufficiently 
pronounced  to  disqualify  him  for  service.  It  is  in  reference  to 
these  peculiarities  that  the  parties  are  given  a  limited  number  of 
peremptory  challenges.  While  they  have  no  direct  right  of  selec- 
tion, this  right  of  peremptory  challenge  gives  to  each  party  a 
restricted  opportunity  for  choice  among  qualified  persons.^  Any- 
thing which  renders  this  statutory  right  of  peremptory  challenge 
materially  less  valuable  is  an  injury  to  a  party,  within  the  meaning 
of  the  statute.      We  do  not  intimate  that  any  juror  would  con- 

*  In  R.  L.,  c.  176,  §  29,  it  is  provided  that  "  In  a  civil  case  each  party  shall 
be  entitled  to  two  such  challenges." 


SEARLE   V.    ROMAN    CATHOLIC    BISHOP    OF   SPRINGFIELD  289 

sciously  allow  feelings  of  friendship  or  prejudice,  or  unusual  and 
peculiar  habits  of  thought,  to  affect  his  conduct  in  the  jury  room; 
much  less  that  a  party  has  a  right  to  have  the  benefit  of  the  pecu- 
liar views  or  special  feelings  of  a  particular  juror  in  the  trial  of  his 
case.  But  the  right  of  peremptory  challenge  in  the  impaneling  of 
jurors  cannot  be  disregarded  as  of  no  value  to  the  parties.  In  the 
case  at  bar,  a  class  of  persons  qualified  as  jurors,  whom  the  plain- 
tiff thought  in  such  relations  of  religious  affiliation  with  the  defend- 
ant that  they  would  be  likely  to  hear  his  defense  in  an  attitude  of 
special  friendship,  was  withdrawn  from  the  list  of  jurors.  The 
order  of  the  judge  rejecting  these  men,  at  the  request  of  the  plain- 
tiff, gave  him  at  the  outset  an  additional  power  of  choice,  and 
made  his  right  of  peremptory  challenge  relatively  more  valuable, 
while  the  defendant's  similar  right  was  made  relatively  less  valua- 
ble. We  are  of  opinion  that  this  was  an  injury  to  the  defendant 
which  entitles  him  to  a  new  trial.  The  number  of  persons  sum- 
moned as  jurors  that  belonged  to  this  class  does  not  appear.  It 
only  appears  that  the  names  of  two  of  them  happened  to  be  drawn 
from  the  box. 

Our  decision  seems  to  be  in  accordance  with  the  weight  of  au- 
thority, although  some  of  the  cases  depend  upon  local  statutes. 
Hildreth  v.  Troy,  101  N.  Y.  234.  Welch  v.  Tribune  Pubhshing 
Co.,  83  Mich.  661.  Scranton  v.  Gore,  124  Penn.  St.  595.  Mon- 
tague V.  Commonwealth,  10  Gratt.  767.  Kunneen  v.  State,  96 
Ga.  406.  Bell  v.  State,  115  Ala.  25.  Danzey  v.  State,  126 
Ala.  15. 

We  are  aware  that  courts  have  often  required  pretty  clear  proof 
of  injury  before  setting  aside  a  verdict  for  a  cause  of  this  kind. 
West  V.  Forrest,  22  Mo.  344.  Southern  Pacific  Co.  v.  Rauh,  49 
Fed.  Rep.  696.  Pittsburg,  Cincinnati,  Chicago  &  St.  Louis  Rail- 
road V.  Montgomery,  152  Ind.  1,  23.  People  v.  Searcey,  121 
Cal.  1.  Tatum  v.  Young,  1  Porter  (Ala.),  298.  Abilene  v.  Hen- 
dricks, 36  Kans.  196,  200.  It  is  also  generally  held  that  an  appel- 
late court  vAW  not  review  an  exercise  of  discretion,  or  a  mere  finding 
of  fact  of  a  trial  judge,  determining  whether  a  person  shall  sit  upon 
a  jury.  Commonwealth  v.  Hayden,  4  Gray,  18.  Grace  v.  Demp- 
sey,  75  Wis.  313.  People  v.  Scarce^,  121  Cal.  1,  3.  Common- 
wealth V.  Moore,  143  Mass.  136,  and  cases  cited.  Whether  an 
error  of  law  like  that  in  the  present  case,  if  it  arose  only  in  deter- 
mining the  qualifications  of  a  single  juror,  should  be  held  so  far  to 
injure  an  objecting  party  as  to  require  the  verdict  to  be  set  aside, 
we  do  not  find  it  necessary  to  determine;  l)ut  when,  as  in  the  pres- 


290  TRIAL 

ent  case,  the  ruling  applies  to  a  class  of  persons,  we  feel  con- 
strained to  say  that  there  was  an  injury  of  which  the  law  should 
take  notice.  Exceptions  sustained} 


'  -v*^ 


/  J~M 


Section  III. 

Right  to  Open  and  Close. 

MERCER  V.   WHALL. 

Queen's  Bench.     1845. 

[Reported  5  Queen's  Bench  Reports,  447.1 

Covenant  against  the  defendant,  an  attorney,  for  dismissing 
from  his  service  the  plaintiff,  an  articled  clerk.  The  defendant 
pleaded  that  the  plaintiff  had  misconducted  himself.  The  plain- 
tiff replied,  de  injuria.  On  the  trial,  before  Lord  Denman,  C.  J.,  a 
question  arose  as  to  the  right  to  begin;  and  his  Lordship  ruled  that 
the  plaintiff  had  that  right,  since  it  lay  on  him  to  prove  some 
damage.  There  was  a  verdict  for  the  plaintiff,  damages  300L 
The  defendant  obtained  a  rule  nisi  for  a  new  trial  on  the  ground, 
inter  alia,  of  an  improper  ruling  on  the  right  to  begin.^ 

Denman,  C.  J.  The  natural  course  would  seem  to  be  that  the 
plaintiff  should  bring  his  own  cause  of  complaint  before  the  Court 
and  jury,  in  every  case  where  he  has  anything  to  prove  either  as  to 
the  fact  necessary  for  his  obtaining  a  verdict,  or  as  to  the  amount 
of  damage  to  which  he  conceives  the  proof  of  such  facts  may  entitle 
him. 

The  law,  however,  has  by  some  been  supposed  to  differ  from  this 
course,  and  to  require  that  the  defendant,  by  admitting  the  cause 
of  action  stated  on  the  record,  and  pleading  only  some  affirmative 
fact  which  if  proved  will  defeat  the  plaintiff's  action,  may  entitle 
himself  to  open  the  proceeding  at  the  trial,  anticipating  the  plain- 
tiff's statement  of  his  injury,  disparaging  him  and  his  ground  of 
complaint,  offering  or  not  offering,  at  his  own  option,  any  proof  of 
his  defensive  allegation,  and,  if  he  offers  that  proof,  adapting  it, 
not  to  plaintiff's  case  as  established,  but  to  that  which  he  chooses 
to  represent  that,  the  plaintiff's  case  will  be. 

1  Sec  Reed  v.  Peacock,  123  Mich.  244,  82  N.  W.  53,  49  L.  R.  A.  423;  Hil- 
dreth  v.  City  of  Troy,  101  N.  Y.  234,  4  N.  E.  559,  54  Am.  Rep.  686.  —  Ed. 

2  The  statement  of  facts  is  abridged  and  a  part  of  the  opinion  is  omitted.  — 
Ed. 


MERCER   V.    WHALL  291 

It  appears  expedient  that  the  plaintiff  should  begin,  in  order 
that  the  judge,  the  jury,  and  the  defendant  himself,  should  know 
precisely  how  the  claim  is  shaped.  This  disclosure  may  convince 
the  defendant  that  the  defence  which  he  has  pleaded  cannot  be 
established.  On  hearing  the  extent  of  the  demand,  the  defendant 
may  be  induced  at  once  to  submit  to  it  rather  than  persevere. 
Thus  the  affair  reaches  its  natural  and  best  conclusion.  If  this 
does  not  occur,  the  plaintiff,  by  bringing  forward  his  case,  points 
his  attention  to  the  proper  object  of  the  trial,  and  enables  the  de- 
fendant to  meet  it  with  a  full  understanding  of  its  nature  and  char- 
acter. If  it  were  a  presumption  of  law  or  if  experience  proved  that 
the  plaintiff's  evidence  must  always  occupy  many  hours,  and  that 
the  defendant's  could  not  last  more  than  as  many  minutes,  some 
advantage  would  be  secured  by  postponing  the  plaintiff's  case  to 
that  of  the  defendant.  But,  first,  the  direct  contrary  in  both  in- 
stances may  be  true;  and,  secondly,  the  time  would  only  be  saved 
by  stopping  the  cause  for  the  purpose  of  taking  the  verdict  at  the 
close  of  the  defendant's  proofs,  if  that  verdict  were  in  favour  of  the 
defendant.  This  has  never  been  done  or  proposed :  if  it  were  sug-^ 
gested,  the  jury  would  be  likely  to  say,  on  most  occasions,  that  they 
could  not  form  a  satisfactory  opinion  on  the  effect  of  the  defend- 
ant's proofs  till  they  had  heard  the  grievance  on  which  the  plain- 
tiff founds  his  action.  In  no  other  case  can  any  practical  advantage 
be  suggested  as  arising  from  this  method  of  proceeding.  Of  the 
disadvantages  that  may  result  from  it,  one  is  the  strong  temp- 
tation to  a  defendant  to  abuse  the  privilege.  If  he  well  knows  that 
the  case  can  be  proved  against  him,  there  may  be  skilful  manage- 
ment in  confessing  it  by  his  plea,  and  affirming  something  by  way 
of  defence  which  he  knows  to  be  untrue,  for  the  mere  purpose  of 
beginning.  Take  one  or  two  cases.  Trespass:  plea;  leave  and 
licence:  the  plaintiff  wishes  to  shew  that  extensive  damage  has 
been  done  to  his  property  for  the  purpose  of  wilful  oppression. 
But  the  defendant  affirms,  and  must  begin.  It  is  obviously  neces- 
sary for  him  to  state  some  case  for  the  plaintiff,  to  shew  that  the 
supposed  licence  applies  to  it.  He  brings  evidence  to  prove  a  li- 
cence. When  the  plaintiff's  turn  comes,  he  clearly  shews  that  the 
licence  set  up  cannot  apply  to  the  trespass  complained  of.  The 
real  trial  now  commences;  and  the  whole  time  given  to  the  defend- 
ant's statement  and  evidence  in  support  of  his  affirmation  has  been 
thrown  away.  Action  for  criminal  conversation:  plea;  that  the 
plaintiff  had  deserted  his  wife:  so  the  defendant  is  to  begin,  and 
possess  the  jury  with  an  affecting  detail  of  cruelty  and  infidelity. 


.^ 


292  TRIAL 

He  purchases  this  right  only  by  admitting  his  adulterous  inter- 
course, an  admission  which  would  seem  to  supply  no  very  good 
reason  for  conferring  any  advantage  upon  him.  He  makes  his 
attempt  by  calUng  some  evidence:  whether  he  fails  or  succeeds 
cannot  be  known  till  the  whole  case  is  closed;  but  the  plaintiff 
brings  forward  his  own  complaint,  the  defendant's  conduct,  the 
extent  of  his  injury,  the  just  amount  of  damages,  with  the  disad- 
vantage of  first  struggling  against  the  heavy  charge  with  which  he 
is  loaded.  Possibly  the  defendant  makes  no  such  attempt;  but 
his  affirmation  on  the  record  gives  him  the  right  to  introduce  the 
plaintiff's  case  by  stating  his  infamy  without  proof,  and  by  proving 
every  circumstance  of  disparagement  and  degradation  short  of  the 
fact  which  he  has  pleaded. 

It  is  not  wonderful  that  little  authority  should  be  found  on  this 
point.  Very  few  nisi  prius  cases  were  formerly  reported.  What 
is  called  the  right  to  begin  was  in  many  instances  rather  a  burden 
than  a  benefit;  and  a  general  opinion  prevailed  that  the  course 
adopted  by  the  presiding  judge  at  the  trial  was  not  subject  to  re- 
vision in  any  other  Court.  But  I  can  speak  of  my  own  impression 
arising  from  attendance  at  nisi  prius  as  a  barrister  near  thirty 
years,  and  corresponding,  as  far  as  I  have  observed,  with  the  gen- 
eral opinion  of  the  bar.  I  never  doubted  that  the  plaintiff  was 
privileged  and  required  to  begin,  whenever  anything  was  to  be 
proved  by  him.  The  simplicity  and  easy  application  of  this  mode 
of  practice  would  recommend  it  to  adoption  if  the  question  were 
new,  and  would  raise  a  great  probaljility  that  the  common  sense  of 
old  times  had  sanctioned  it  as  a  part  of  our  system.  It  frequently 
occurred  that,  in  an  action  of  trespass,  with  plea  of  justification 
under  a  right,  the  defendant  claimed  to  begin.  He  said:  "  I 
admit  the  trespass;  and  the  burden  of  proving  the  defence  rests 
on  me."  The  answer  constantly  given  was :  '' I  the  plaintiff  have 
the  right  to  begin,  because  I  go  for  substantial  damages.  I  claim 
to  disprove  your  right  in  the  first  place,  if  I  think  proper,  but  at  all 
events  to  possess  the  jury  of  the  extent  of  the  mischief  you  have 
done  me."  On  such  occasions  the  Judge  took  upon  himself  to 
decide  whether  the  plaintiff  really  went  for  substantial  damages. 
If  he  did,  it  was  always  assumed  that  he  must  begin.  The  Judge 
perhaps  decided  this  matter  without  very  adequate  materials;  but 
he  would  not  have  thought  of  doing  so  at  all  if  the  right  depended 
on  the  issue  as  it  appeared  on  the  record.  .  .  . 

In  ejectment,  the  defendant  may  entitle  himself  to  begin,  by 
admitting  that  the  plaintiff  must  recover  possession  unless  the 


AYBR  V.   AUSTIN  293 

defendant  can  establish  a  certain  fact  in  answer;  and,  if,  in  an 
action  for  damages,  the  damages  are  ascertained,  and  the  plaintiff 
has  a  'prima  facie  case  on  which  he  must  recover  that  known  amount 
and  no  more  unless  the  defendant  proves  what  he  has  affirmed  in 
pleading,  here  is  a  satisfactory  ground  for  the  defendant's  proceed- 
ing at  once  to  establish  that  fact.  But,  if  the  extent  of  damage  is 
not  ascertained,  the  plaintiff  is  the  person  to  ascertain  it,  and  his 
doing  so  will  have  the  good  effect  of  making  even  the  defence,  in  a 
vast  majority  of  cases,  much  more  easily  understood  for  all  who 
are  entrusted  with  the  decision. 

We  do  not  deem  it  necessary  to  discuss  the  numerous  cases 
recently  reported  from  nisi  prius;  for  they  only  prove  the  unsettled 
state  of  judicial  opinion  on  this  subject:  but,  for  the  reasons  now 
given,  we  think  that  the  plaintiff  was  entitled  to  begin  on  the 
present  occasion.  .  .  . 

There  is  therefore  no  ground  for  a  new  trial ;  and  the  rule  must 
be  discharged.  Rule  discharged.^ 


AYER  V.   AUSTIN. 
Supreme  Judicial  Court  of  Massachusetts.     1828. 

[Reported  6  Pickering,  225.] 

Trespass  against  the  sheriff  of  Middlesex  for  taking  the  plain- 
tiff's timber. 

The  defendant  pleaded  the  general  issue,  and  filed  a  brief  state- 
ment, wherein  he  averred  that  the  timber  was  attached  by  one 
Hunnewell,  his  deputy,  on  divers  Avrits  against  Edward  and  Henryy 
Rogers,  whose  property  at  the  time  of  the  taking  he  alleged  it  to  be, 
and  so  justified  the  taking,  &c. 

At  the  trial,  before  Wilde,  J.,  the  counsel  for  the  defendant 
admitted  that  the  timber  was  once  the  property  of  the  plaintiff, 
and  that  it  still  remained  so,  unless  there  had  been  a  sale  to  the 
Rogerses.  Upon^this^  admission  the_  defendant  was  called  upon  to 
make  his  (tefence,-a*d4us-jsou^sel[^ontend^^  burden 

of^  proof  was  thrown  upon  him  by  the  admission,  his  counsel  was 
entitled  to  begin  and  also  to  close  the  case;  but  the  judge  ruled 
that  the  plaintiff's  counsel  was  entitled  to  the  close.^  .  .  . 

*  See  also  Brunswick  &  Western  R.  R.  Co.  r.  Wiggins,  113  Ga.  842,  39  S.  E. 
5.51,  61  L.  R.  A.  513;  Cunningham  v.  Gallagher,  Gl  Wis.  170,  20  N.  W. 
925.  —  Ed. 

*  A  part  of  the  statement  of  facts  is  omitted.  —  Ed. 


r 


294  TRIAL 

Parker,  C.  J.,  delivered  the  opinion  of  the  Court.  On  the  point 
raised  in  this  case,  which  is  matter  of  practice  only,  we  are  all  clear 
that  the  course  of  argument  prescribed  at  the  trial  was  right. 
■p' The  general  rule  is,  that  the  plaintiff,  who  has  the  burden  of  proof,  / 
/  shall  have  the  general  reply  or  closing  argument.  There  has  been 
ah  exception  in  our  practice,  only  where  the  defendant  by  his  plea 
admits  the  whole  cause  of  action  stated  in  the  declaration,  and 
undertakes  to  remove  or  defeat  it  by  the  matter  set  up  in  his  bar. 
The  cases  have  usually  been  trespass,  where  the  defendant  acknowl- 
edges the  act,  and  claims  in  his  plea  the  soil  and  freehold  in  himself, 
or  some  one  under  whom  he  acts  as  a  servant  or  by  license ;  — 
slander,  in  which  a  justification  only  is  pleaded  —  and  debt  on 
obligation,  where  the  contract  is  admitted  and  some  matter  of 
defeasance  or  discharge  is  pleaded.  There  are  other  cases  depend- 
ing upon  the  same  principle,  that  is,  where,  by  the  pleadings, 
nothing  essential  to  the  action  is  left  for  the  plaintiff  to  prove,  and 
where  the  finding  of  the  issue  for  the  defendant  depends  upon 
affirmative  proof  by  him.  In  all  such  cases,  however,  if  the  defend- 
ant pleads  the  general  issue  also,  the  right  of  reply  has  been  ac- 
corded to  the  plaintiff,  even  if  on  trial  the  defendant  waives  any 
proof  on  the  part  of  the  plaintiff  to  maintain  that  issue.  This 
having  been  the  uniform  practice,  according  to  the  recollection 
of  all  of  us,  it  is  best  to  adhere  to  it,  although  in  other  cases,  and  in 
such  as  is  before  us,  where  the  plaintiff  was  saved  the  trouble  of 
proof  to  make  out  his  case  by  admission  of  the  necessary  facts,  the 
reason  may  be  quite  as  strong  for  giving  this  privilege  to  the 
defendant.  The  right  of  closing  a  cause  is  not.  very,  essential  to 
the  procuremenTof  a  right  verdict,  if  the  judge  who  preside^Js- 
cautious  in  summing  up"l;he  evidence.  If,  as  in'a  neighbouring 
state,  the  Court  were  mere  silent  spectators  of  forms  without  the 
right  of  charging  the  jury,  the  privilege  of  closing  would  be  more 
worth  contending  for  than  with  us,  where  the  judge  has  the  last 
word  instead  of  the  counsel.  Motion  for  new  trial  overruled} 

1  In  Massachusetts  the  rule  has  been  changed  and  the  plaintiff  is  entitled 
to  open  and  close  in  all  cases.  See  Dorr  v.  Tremont  Nat.  Bank,  128  Mass.  349. 
—  Ed. 


MURRAY   V.    NEW    YORK   LIFE    INSURAJ^CE    COMPANY  295  y 

/O^     W^    pmTlFElC  and  Others  v.   JOLLY.  /     V     ^'tV^-^>^««4^i''*-t^ 

Nisi  Prius.     1839. 
[Reported  9  Carrington  &  Payne,  202.] 

Assumpsit  on  a  bill  of  exchange,  dated  the  16th  of  February, 
1839,  drawn  by  James  Jolly  on  the  defendant  for  £25,  payable 
three  months  after  date,  and  by  James  Jolly  indorsed  to  the  plain- 
tiff. Pleas,  1st,  a  denial  of  the  acceptance;  2nd,  a  denial  of  the 
indorsement;  3rd,  payment  before  the  bringing  of  the  action;  4th, 
that  the  bill  was  given  as  a  security  for  the  payment  of  a  sum  of 
26Z.  5s,  due  from  James  Jolly  to  the  plaintiffs,  and  that  that  sum 
had  been  paid  to  the  plaintiffs  before  the  bringing  of  the  action. 
Replication,  to  the  3rd  and  4th  pleas,  de  injurid. 

R.  V.  Richards,  for  the  defendant.  —  I  will  admit  the  acceptance 
and  the  indorsement,  and  open  my  case  on  the  3rd  and  4th  pleas. 

Kelly,  for  the  plaintiffs.  —  The  defendant  admitting  that  the 
plaintiffs  must  have  a  verdict  on  the  first  two  issues  does  not  de- 
prive me  of  my  right  to  begin. 

R.  V.  Richards.  —  I  submit  that  this  is  like  the  case  of  an  eject- 
ment by  heir  against  devisee;  where,  if  the  defendant  admits  the 
heir's  prima  facie  title,  he  is  entitled  to  begin. 

Alderson,  B.  —  I  think  Mr.  Richards  now  admitting  the  ac- 
ceptance and  indorsement  will  not  entitle  him  to  begin.  On  this 
record  the  plaintiff  is  entitled  to  begin. 

Kelly,  for  the  plaintiffs,  opened  his  case. 

Verdict  for  the  plaintiffs.^ 


MURRAY  V.  NEW  YORK  LIFE  INSURANCE  COMPANY. 

Court  of  Appeals  of  New  York.     1881. 

[Reported  85  New  York,  236.] 

Miller,  J.^  The  right  of  a  party  holding  the  affirmative  upon 
an  issue  of  fact  upon  trial  to  open  and  close  the  evidence,  and  upon 
the  final  submission  of  the  case  to  the  jury  to  reply  in  summing  up 

»  See  Price  v.  Seaward,  Car.  &  M.  23;  Lake  Ontario  Nat.  Bank  z;.  Judson,  122 
N.  Y.  278,  25  N.  E.  367. 

As  to  the  effect  of  an  amendment  of  the  pleadings,  see  Gardner  v.  Meeker 
169  111.  40,  48  N.  E.  307.  —  Ed. 

'  The  statement  of  facts  is  omitted.  —  Ed. 


296  TRIAL 

the  case  is  too  well  settled  to  admit  of  any  question.  And  when 
such  right  is  denied  by  the  judge  upon  the  trial,  such  denial  fur- 
nishes ground  for  exception,  which  is  the  subject  of  review  upon 
appeal.  Millerd  v.  Thorn,  56  N.  Y.  402.i  The  defendant  in  this 
case  clearly  held  the  affirmative  of  the  issue  upon  trial,  and  the 
judge  erred  in  refusing  to  allow  the  defendant  to  open  and  close  the 
case  in  accordance  with  such  right.  The  complaint  was  upon  two 
policies  of  insurance,  copies  of  which  were  attached,  each  of  which 
contained  a  provision  as  follows,  that:  "  If  the  person  whose  life 
is  hereby  insured  shall  .  .  .  die  in'  or  in  consequence  of  a  duel, 
or  of  the  violation  of  the  laws  of  any  nation.  State  or  province, 
.  .  .  then,  and  in  every  such  case,  this  policy  shall  be  null  and 
void." 

It  alleged  among  other  things  that  the  death  of  the  insured  was 
not  caused  by  the  breaking  of  any  of  the  conditions  and  agreements 
in  either  of  the  policies.  This  allegation  was  not  required,  and  all 
that  was  essential  to  make  out  a  cause  of  action  was  a  statement 
of  the  contract,  the  death  of  the  assured,  and  the  failure  to  pay  as 
provided.  The  insertion  of  an  unnecessary  allegation  in  the  com- 
plaint, which  the  plaintiff  was  not  required  to  aver  or  to  prove  in 
order  to  establish  his  case,  could  not  and  did  not  deprive  the  defend- 
ant of  his  right  to  the  affirmative,  if  such  right  actually  existed. 
As  the  allegation  referred  to  was  not  properly  there  for  the  purpose 
of  making  out  a  good  cause  of  action,  the  complaint  must  be  re- 
garded as  if  it  contained  no  such  averment.  The  answer  of  the 
defendant  denied  this  allegation  of  the  complaint,  admits  the  death, 
and  sets  up  that  the  insured  died  in  consequence  of  a  violation  by 
him  of  the  laws  of  the  State  of  New  York,  and  in  consequence  of 
an  unlawful  assault  committed  by  him  upon  one  Robert  H.  Ber- 
dell.  It  also  admits  that  the  defendant  insured  the  life  of  Wisner 
Murray  by  two  policies  of  insurance,  copies  of  which  were  annexed 
to  the  complaint,  and  begs  leave  to  refer  to  the  originals  thereof 
when  they  shall  be  produced.     This  allegation  we  think  was  not  a 

*  For  cases  showing  conflicting  opinions  as  to  whether  the  deprivation  of  the 
right  to  begin  is  error,  see  Thompson,  Trials,  2d  ed.,  sec.  226;  38  Cyc.  1309. 

In  Lancaster  v.  CoUins,  115  U.  S.  222,  29  L.  ed.  373,  6  S.  Ct.  33,  the  court, 
Blatchford,  J.,  said:  "  It  is  also  assigned  for  error,  that  the  court  refused  to 
permit  the  counsel  for  the  plaintiff  to  make  the  closing  argument  to  the  jury, 
the  contention  on  the  part  of  the  plaintiff  being  that  the  affirmative  was  with 
him.  But  this  is  purely  a  question  of  practice,  to  be  reviewed  only  by  a  motion 
for  a  new  trial  in  the  trial  court,  and  is  not  the  proper  subject  of  a  bill  of  excep- 
tions or  of  a  writ  of  error,  because  it  does  not  affect  the  merits  of  the  contro- 
versy.    Day  V.  Woodworth,  13  How.  3G3,  370."  —  Eu. 


MURRAY   V.    NEW    YORK   LIFE    INSURANCE    COMPANY  297 

denial  of  the  policies  and  did  not  require  their  proof.  In  fact  it 
admitted  their  existence  and  validity,  simply  asking  that  the 
originals  instead  of  copies  be  taken  as  the  contract,  which  was 
all  the  plaintiff  claimed. 

The  only  facts  which  were  really  to  be  tried  were  those  averred 
in  the  affirmative  defense  set  up  that  Wisner  Murray  died  in  con- 
sequence of  a  violation  of  the  laws  of  the  State.  If  the  defendant 
introduced  no  such  evidence  by  the  answer  which  admitted  the 
plaintiff's  cause  of  action  she  was  entitled  to  recover  the  amount  of 
the  policies. 

The  defendant  had  alleged  a  breach,  and  unless  it  was  proved 
no  defense  was  made  out,  and  the  plaintiff  was  not  called  upon  to 
disprove  what  had  not  been  established  by  evidence.  No  pre- 
sumption could  arise  in  favor  of  the  defendant  without  proof  that 
the  assured  died  from  a  violation  of  law,  and  unless  this  was  es- 
tabUshed  the  plaintiff  would  have  been  entitled  to  a  judgment  upon 
the  pleadings.  The  rule  is  well  established  that  in  an  action  upon 
a  policy  of  insurance  when  the  answer  admits  the  issuing  of  the 
policy  and  the  allegations  in  the  complaint,  and  alleges  a  breach  of 
its  conditions,  the  burden  of  proof  is  upon  the  defendant,  and  the 
plaintiff  is  entitled  to  recover  unless  the  defendant  satisfies  the 
court  or  jury,  by  a  preponderance  of  evidence,  that  the  conditions 
had  been  broken.  Jones  v.  Brooklyn  Life  Ins.  Co.,  61  N.  Y.  79; 
Van  Valkenburgh  v.  American  Pop.  Life  Ins.  Co.,  70  id.  605;  El- 
well  V.  Chamberhn,  31  id.  611.  There  is  no  ground  for  claiming 
that  the  answer  did  not  admit  all  that  was  essential  to  entitle  the 
plaintiff  to  a  judgment,  and  there  is  no  such  denial  of  any  material 
fact  in  the  complaint  as  required  any  proof  on  the  part  of  the  plain- 
tiff to  maintain  the  action.  ]\Ierely  asking  leave  to  refer  to  the 
original  policies  when  produced  related  to  the  accuracy  of  the 
copies,  was  not  a  denial  of  their  terms  and  conditions,  and  presented 
no  issue  for  trial.  The  plaintiff,  we  think,  would  have  been  entitled 
to  a  judgment  \vithout  their  production,  and  upon  the  failure  of 
the  defendant  to  prove  his  affirmative  defense  that  the  deceased 
died  in,  or  in  consequence  of  a  violation  of  law,  and  after  the  court 
had  held  that  the  plaintiff  was  entitled  to  the  affirmative,  such 
testimony  could  have  no  effect  in  determining  the  right  of  the 
defendant  to  the  affirmation. 

As  for  the  error  stated  the  judgment  must  be  reversed,  and  as  a 
new  trial  may  present  a  different  state  of  facts,  it  is  not  necessary 
to  consider  the  other  questions  raised  upon  the  trial. 


298 


TRIAL 


x» 


'\ 


i 


The  judgment  should  be  reversed  and  new  trial  granted,  with 
costs  to  abide  the  event. 

All  concur.  Judgment  reversed.^ 

In  Huntington  v.  Conkey,  33  Barb.  (N.  Y.),  218,  p.  228,  the 
court  (E.  D.  Smith,  J.)  thus  summarized  the  law  on  the  right  to 
begin : 

"  1st.  The  plaintiff  in  all  cases  where  the  damages  are  unliqui- 
dated, has  the  right  to  open  the  case  to  the  jury  and  have  the  reply. 

*'  2d.  Whenever  the  plaintiff  has  anything  to  prove,  on  the 
question  of  damages,  or  otherwise,  he  has  the  right  to  begin. 

"  3d.  In  other  cases,  where  the  damages  are  hquidated  or  depend 
upon  mere  calculation  —  as  the  casting  of  interest  ■ —  the  party 
holding  the  affirmative  of  the  issue  has  the  right  to  begin. 

"  4th.  The  affirmative  of  the  issue,  in  such  cases,  means  the  affir- 
mative in  substance,  and  not  in  form,  and  upon  the  whole  record. 

"  5th.  That  the  denial  of  the  right  to  begin,  to  the  party  entitled 
to  it  and  claiming  it  at  the  PTPJ^erJime,  is  error  for  which  a  new 
trial  will  'be  graritecT;  unless  the  court  can  see,  clearly,  that  no 
injury  or  injustice  resulted  from  the  erroneous  decision." 


Section  IV. 

'Demurrer  to  Evidence. 

MIDDLETON  v.   BAKER 

Queen's  Bench.     1600. 

[Reported  2  Croke,  Elizabeth,  752. 

Ejections  Firmae.  —  It  was  held  by  all 
evidence  to  a  jury,  that  if  the  plaintiff  in  an  ejectione  firmae,  or 
other  action,  gives  in  evidence  any  matter  in  writing  or  record,  0 
or  a  sentence  in  the  spiritual  court  (as  it  was  in  this  case),  and  the 
defendant  offers  to  demur  thereupon,  the  plaintiff  ought  to  join 
in  the  demurrer,  or  waive  the  evidence,  because  the  defendant 
shall  not  be  compelled  to  put  a  matter  of  difficulty  to  lay  gents, 
and  because  there  cannot  be  any  variance  of  a  matter  in  writing : 
but  if  either  party  offers  to  demur  upon  any  evidence  given  by 

1  See  Heilbronn  v.  Herzog,  165  N.  Y.  98,  58  N.  E.  759. 

Conversely,  when  the  plea  or  answer  is  affirmative  in  form  but  negative  in 
substance,  the  plaintiff  has  the  right  to  open  and  close.  Rahm  v.  Deig,  121  Ind. 
283,  23  N.E.  141.  — Ed. 


'^9y-^, 


T7/' 


u\/v  •  \    K^--  ■'  A. 


SKINNER   MANUFACTURING    COMPANY   V.    WRIGHT  299 

witness,  the  other,  unless  he  pleaseth,  shall  not  be  compelled  to 
join;  because  the  credit  of  the  testimony  is  to  be  examined  by  a 
jury,  and  the  evidence  is  certain,  and  may  be  enforced  more  or 
less,  but  both  parties  may  agree  to  join  in  demurrer  upon  such 
evidence.  And  in  the  queen's  case,  the  other  party  may  not  de- 
mur upon  evidence  shewn  in  writing  or  record  for  the  queen, 
unless  the  queen's  counsel  will  thereto  assent;  but  the  Court  in 
such  case  shall  charge  the  jury  to  find  the  matter  special,  as 
appears  34  Hen.  8.  Dyer,  53.     But  this  is  by  prerogative. 


SKINNER  MANUFACTURING  COMPANY  v.  WRIGHT. 

Supreme  Court  of  Florida.  1906. 

[Reported  51  Florida,  324.] 

Shackleford,  C.  J.  This  is  an  action  of  ejectment  instituted 
by  the  plaintiff  in  error  as  plaintiff  against  the  defendant  in  error 
as  defendant  in  the  Circuit  Court  for  Santa  Rosa  County  to  recover 
the  possession  of  a  certain  parcel  of  land  and  for  mesne  profits.  At 
the  close  of  all  the  plaintiff's  evidence  the  defendant  filed  what  pur- 
ported to  be  a  demurrer  thereto,  the  plaintiff  objected  to  joining 
therein  but  the  court  made  an  order  requiring  it  to  do  so,  which 
the  plaintiff  then  did,  and  after  argument  by  the  respective  counsel 
the  court  made  an  order  sustaining  the  demurrer  to  the  evidence 
and  rendered  a  judgment  in  favor  of  the  defendant.  To  this  judg- 
ment the  plaintiff  took  a  writ  of  error  returnable  to  the  present 
term.  Three  errors  are  assigned,  based  respectively  upon  the  order 
requiring  the  plaintiff  to  join  in  the  demurrer  to  the  evidence,  the 
order  sustaining  the  demurrer  and  the  order  overruling  the  plain- 
tiff's motion  for  a  new  trial. 

The  demurrer  in  question  was  as  follows: 

"  The  defendant  demurs  to  the  evidence  in  this  case  and  for 
ground  of  demurrer  says  that  it  is  insufficient  to  warrant  the  finding 
of  a  verdict  or  the  rendition  of  a  judgment  in  favor  of  the  plaintiff." 

We  are  of  the  opinion  that  all  the  errors  are  well  assigned. 

It  is  settled  law  in  this  court  that  the  party  demurring  to  the 
evidence  must  set  forth  on  the  record  all  of  the  evidence  intended 
to  be  admitted  thereby,  and,  if  this  is  not  done,  the  opposing  party 
cannot  be  required  to  join  therein,  and,  even  if  he  should  join 
therein  voluntarily,  the  court  can  give  no  judgment  upon  the  de- 
murrer^ butmust  award  a  venire  de  novo.     See  Higgs  v.  Shehee,  4 


/}..:^4r^    <  <U^^  H/.. 


300  TRIAL 

Fla.  382;  Morris  v.  McKinnon,  12  Fla.  552;  Hinote  v.  Simpson  & 
Co.,  17  Fla.  444;  Hanover  Fire  Insurance  Co.  v.  Lewis,  23  Fla.  193, 
1  South.  Rep.  863;  Duncan z;.  State,  29  Fla. 439, 10  South. Rep.  815; 
Wilkinson  v.  Pensacola  &  Atlantic  R.  R.  Co.,  35  Fla.  82,  17  South. 
Rep.  71;  Fee  v.  Florida  Sugar  Manufacturing  Company,  36  Fla. 
612,  18  South.  Rep.  853;  Holland  v.  State,  39  Fla.  178,  22  South. 
Rep.  298;  Ingram  v.  Jacksonville  St.  R.  R.  Co.,  43  Fla.  324,  30 
South.  Rep.  800;  Lowe  v.  State,  44  Fla.  449,  32  South.  Rep.  956, 
S.  C.  103  Amer.  St.  Rep.  449;  Mugge  v.  Jackson,  50  Fla.  235,  39 
South.  Rep.  157;  Atlantic  Coast  Line  R.  R.  Co.  v.  Dexter,  50  Fla. 
180,  39  South.  Rep.  634.  Also  see  Gould's  Pleading  (5th  ed.)  446 
et  seq.;  Gibson  and  Johnson  v.  Hunter,  2  H.  Blackstone,  187,  text 
205  et  seq.,  6  Ency.  of  PI.  &  Pr.  446  et  seq. 

None  of  the  evidence  in  the  instant  case,  which  was  partly  docu- 
mentary and  partly  parol,  was  reduced  to  writing,  and  no  facts 
were  admitted  or  stated  on  the  record  by  the  demurrer. 

Further  discussion  is  unnecessary.  The  judgment  must  be 
reversed,  and  it  is  so  ordered,  at  the  cost  of  the  defendant  in  error.^ 

CocKRELL  and  Whitfield,  JJ.,  concur. 

Taylor  and  Hocker,  JJ.,  concur  in  the  opinion. 

Parkhill,  J.,  disqualified. 

1  In  the  leading  case  of  Gibson  v.  Hunter,  2  H.  Bl.  187,  Lord  Chief  Justice 
Eyre  said: 

"  All  our  books  agree,  that  if  a  matter  of  record,  or  other  matter  in  writing, 
be  offered  in  evidence  in  maintenance  of  an  issue  joined  between  the  parties, 
the  adverse  party  may  insist  upon  the  jury  being  discharged  from  giving  a  ver- 
dict, by  demurring  to  the  evidence,  and  obUging  the  party  offering  the  evidence 
to  join  in  demurrer.  He  cannot  refuse  to  join  in  demurrer,  he  must  join,  or 
waive  the  evidence.  Our  books  also  agree,  that  if  parol  evidence  be  offered, 
and  the  adverse  party  demurs,  he  who  offers  the  evidence  may  join  in  de- 
murrer if  he  will.  We  are  therefore  thus  far  advanced,  that  the  demurrer  to 
evidence  is  not  necessarily  confined  to  wiitten  evidence.  The  language  of  our 
books  is  very  indistinct  upon  the  question.  Whether  the  party  offering  parol 
evidence  should  be  obliged  to  join  in  demurrer.  Why  is  he  obliged  to  join  in 
demurrer,  when  the  evidence  which  he  has  offered  is  in  wTiting  ?  The  reason 
is  given  in  Croke's  report  of  Baker's  case,  because,  says  the  book,  "  there 
cannot  be  any  variance  of  matter  in  writing."  Parol  evidence  is  sometimes 
certain,  and  no  more  admitting  of  any  variance  than  a  matter  in  writing,  but 
it  is  also  often  loose  and  indeterminate,  often  circumstantial.  The  reason  for 
obhging  the  party  offering  evidence  in  writing,  to  join  in  demurrer,  appUes  to 
the  first  sort  of  parol  evidence,  but  it  does  not  apply  to  parol  evidence  which  is 
loose  and  indeterminate,  which  may  be  urged  with  more  or  less  effect  to  a  jury, 
and  least  of  all  will  it  apply  to  evidence  of  circumstances,  which  evidence  is 
meant  to  operate  beyond  the  proof  of  the  existence  of  those  circumstances,  and 
to  conduce  to  the  proof  of  the  existence  of  other  facts.    And  yet  if  there  can  be 


GALVESTON,  HARRISBURG  &  SAN  ANTONIO  RY.  CO.  V.  TEMPLETON     301 

THE   GALVESTON,   HARRISBURG   &   SAN   ANTONIO 
RAILWAY   COMPANY   v.   TEMPLETON. 

Supreme  Court  of  Texas.     1894. 
[Reported  87  Texas,  42.] 

Brown,  A.  J.^  Defendant  in  error,  plaintiff  below,  brought  this 
suit  by  petition  filed  August  1,  1891,  in  the  District  Court  for  the 
Forty-fifth  Judicial  District  of  Bexar  County,  to  recover  $15,000 
damages,  alleged  to  have  been  sustained  by  him  on  or  about  Au- 
gust 20,  1890,  at  San  Antonio,  by  reason  of  injuries  received,  while 
in  the  service  of  appellant  and  in  the  discharge  of  his  duties  as 
switchman,  in  attempting  to  mount  a  flat  car  on  which  was  a  de- 
fective brake,  causing  him  to  be  thrown  from  the  car,  his  right  leg 
broken,  and  thereby  made  much  shorter  than  the  other,  and  ren- 
dering him  a  cripple  for  life,  unable  to  perform  manual  labor. 
From  the  injury  he  charges  that  he  suffered  great  physical  pain  and 
mental  anguish. 

Defendant  answered  by  general  demurrer,  general  denial,  and 
the  plea  that  plaintiff's  injury  was  caused  by  his  own  carelessness 
or  that  of  his  fellow  servants;  and  also  by  special  exception  to 
plaintiff's  first  amended  original  petition,  to  the  effect  that  it  did 
not  show  wherein  or  how  the  brake  alleged  to  have  caused  the  acci- 
dent was  defective. 

There  was  a  trial  by  jury.  The  plaintiff  having  closed  his  evi- 
dence, the  defendant  demurred  thereto;  upon  which  plaintiff 
joined  issue,  and  the  court  overruled  the  demurrer  and  instructed 
the  jury  to  find  for  the  plaintiff  the  actual  damages  by  him  sus- 
tained, if  any,  as  the  only  question  left  for  their  determination. 
There  was  a  verdict  and  judgment  in  favor  of  plaintiff  for  S4600. 
Defendant  made  its  motion  for  a  new  trial,  which  being  overruled, 
it  excepted  thereto  and  in  open  court  gave  notice  of  appeal;  and 

no  demurrer  in  such  cases,  there  will  be  no  consistency  in  the  doctrine  of  de- 
murrers to  evidence,  by  which  the  application  of  the  law  to  the  fact  on  an  issue 
is  meant  to  be  withdrawn  from  a  jury,  and  transferred  to  the  Judges.  If  the 
party  who  demurs  will  admit  the  evidence  [existence?]  of  the  fact,  the  evidence 
of  which  fact  is  loose  and  indeterminate,  or  in  the  case  of  circumstantial  evi- 
dence, if  he  will  admit  the  existence  of  the  fact,  which  the  circumstances 
offered  in  evidence  conduce  to  prove,  there  will  then  be  no  more  variance  in 
this  parol  evidence,  than  in  a  matter  in  wTiting,  and  the  reasons  for  compel- 
ling the  party  who  offers  the  evidence  to  join  in  demurrer,  will  then  apply,  and 
the  doctrine  of  demurrers  to  evidence  will  be  uniform  and  consistent."  —  Ed. 
*  A  part  of  the  opinion  is  omitted,  —  Ed. 


302  TRIAL 

thereafter  perfected  its  appeal  by  filing  a  supersedeas  bond  and  an 
assignment  of  errors. 

The  Court  of  Civil  Appeals  affirmed  the  judgment  of  the  District 
Court.  .  .  . 

The  defendant  having  demurred  to  the  evidence,  and  the  plain- 
tiff having  joined  in  it,  the  case  was  as  to  the  facts  and  the  right  of 
plaintiff  to  recover  withdrawn  from  the  jury,  and  must  be  decided 
by  the  court.  Booth  v.  Cotton,  13  Texas,  362;  Tierney  v.  Frazier, 
57  Texas,  443;  Thornton  v.  Bank,  3  Pet.  40;  Obaugh  v.  Finn,  4 
Ark.  110;  1  Tidd's  Prac.  575. 

If  the  damages  claimed  by  plaintiff  were  liquidated,  the  court 
might  decide  the  entire  case,  for  in  that  event  there  would  be  no 
issue  to  submit  to  the  jury.  But  when,  as  in  this  case,  the  damages 
claimed  are  unliquidated,  that  question  must  be  submitted  to  a 
jury  to  ascertain  the  amount.  Ins.  Co.  v.  Le^vis,  1  So.  Rep.  863; 
Boyd  V.  Gilchrist,  15  Ala.  856;  Young  v.  Foster,  7  Port.  (Ala.),  420; 
1  Tidd's  Prac.  575;  2  Id.  866. 

When  a  demurrer  to  evidence  has  been  presented  and  joined  in 
'I  I  by  the  opposite  party,  the  court  may  submit  the  case  to  the  jury 
^  -^  I  to  ascertain  the  damages  before  deciding  upon  the  demurrer,  and 
hold  the  verdict  subject  to  decision  on  the  demurrer.  Or  if  the 
demurrer  be  decided  before  the  jury  then  impaneled  has  been 
discharged,  the  court  may  submit  the  question  of  damages  to  the 
jury  that  heard  the  evidence.  Or  the  court  may,  upon  presenta- 
tion of  the  demurrer,  discharge  the  jury,  and  in  case  it  be  overruled 
'  "x^l  impanel  a  new  jury  to  assess  the  damages.     2  Tidd's  Prac.  866; 

Ins.  Co.  V.  Lewis,  1  So.  Rep.  863;  Obaugh  v.  Finn,  4  Ark.  110; 
Young  V.  Foster,  7  Port.  (Ala.),  420;  Boyd  v.  Gilchrist,  15  Ala. 
856;  Humphreys  v.  West,  3  Rand.  516. 

It  is  the  better  practice,  we  think,  to  submit  the  question  of 
damages  to  the  jury  that  has  heard  the  evidence,  either  before  or 
after  decision  on  the  demurrer,  by  which  delay  and  cost  would  be 
saved  for  the  parties  to  the  action.  Whether  it  be  submitted  be- 
fore or  after  the  decision  upon  the  demurrer  cannot  be  of  impor- 
tance nor  work  injury  to  either  party.  It  was  not  error  to  submit 
the  issue  as  to  the  amount  of  damages  to  the  jury  then  impaneled, 
after  the  demurrer  had  been  overruled. 

Plaintiff  in  error  claims  that  the  court,  after  overruling  its  de- 
murrer to  the  evidence,  should  have  submitted  the  case  to  the  jury 
on  the  evidence  as  to  the  right  of  plaintiff  to  recover.  This  would 
be  a  most  extraordinary  result  of  a  demurrer  to  evidence.  By  it 
defendant  would,  under  that  practice  (if  it  were  the  practice  in  any 


SOUTHERN    RAILWAY    CO.    V.    TYREE    &    ADMINISTRATOR        303 

court),  withdraw  the  case  from  the  jury  as  to  the  rights  of  the  plain- 
tiff, and  in  case  the  decision  was  favorable  to  the  defendant,  the 
plaintiff  would  be  deprived  of  a  trial  by  jury  at  the  election  of 
the  defendant;  but  in  case  the  court  to  which  defendant  appealed 
should  decide  against  it,  then  it  must  be  allowed  that  trial  which 
it  sought  to  avoid  by  the  demurrer.  It  would  have  been  error  to 
have  done  what  plaintiff  in  error  claims  the  court  should  have 
done.  It  would  have  been  contrary  to  the  law,  against  reason, 
and  against  the  right.  .  .  . 

The  judgments  of  the  District  Court  and  the  Court  of  Civil 
Appeals  are  affirmed.  Affirmed. 


SOUTHERN  RY.  CO.  v.  TYREE  &  ADMINISTRATOR. 

Supreme  Court  of  Appeals  of  Virginia.     1912. 

[Reported  114  Virginia,  318.] 

Harrison,  J.,^  delivered  the  opinion  of  the  court. 

This  suit  was  brought  to  recover  damages  for  the  alleged  negli- 
gent killing  of  the  plaintiff's  intestate  by  the  defendant  railway 
company.  There  was  a  demurrer  to  the  evidence  by  the  defend- 
ant, which  was  overruled,  and  judgment  was  given  the  plaintiff 
for  the  damages  ascertained  by  the  jury.  This  action  of  the  cir- 
cuit court  is  brought  under  review  by  the  present  writ  of  error.  .  .  . 

It  is  unnecessary  to  review  the  evidence  adduced  in  this  case  to 
sustain  the  judgment  complained  of.  It  is  sufficient  to  say  that 
if  the  case  had  gone  to  the  jury  they  might  readily  and  reasonably 
have  found  that  the  plaintiff's  intestate  lost  his  life  without  fault 
on  his  part,  and  solely  as  a  result  of  the  negligent  operation  of  its 
passenger  train  by  the  defendant  company.  It  is  well  settled 
that  if  the  jury  might  find  the  defendant  guilty  of  negligence  and 
the  deceased  free  from  contributory  negligence,  the  court  must  so 
find  on  a  demurrer  to  the  evidence.  Bass  v.  N.  &  W.  Ry.  Co.,  100 
Va.  8,  40  S.  E.  100;  C.  &  0.  Ry.  Co.  v.  Hoffman,  109  Va.  44,  63 
S.  E.  432 

Upon  due  consideration  of  the  whole  case,  the  judgment  must  be 
affirmed.  Affirmed.^ 

^  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 
*  See  Cocksedge  v.  Fanshaw,  Doug.  118,  129.  —  Ed. 


// 


304  TRIAL 

HOPKINS  V.   RAILROAD. 

Supreme  Court  of  Tennessee.     1896. 

[Reported  96  Tennessee,  409.] 

McAlister,  J.i  The  only  question  presented  for  determination 
upon  the  record  is  whether  the  practice  of  demurring  to  the  evi- 
dence is  sanctioned  by  the  Constitution  and  laws  of  this  State. 
The  suit  was  brought  by  W.  D.  Hopkins,  Administrator,  to  recover 
damages  for  the  unlawful  killing  of  his  son,  W.  O.  Hopkins.  .  .  . 

It  appears  from  the  record  that  at  the  conclusion  of  the  plain- 
tiff's testimony  before  the  jury,  counsel  for  defendant  company 
interposed  a  written  demurrer  to  the  evidence,  as  follows,  to  wit: 
"  The  defendant  comes  and  demurs  to  the  evidence  of  plaintiff, 
and  offers  to  admit  of  record  that  the  following  testimony  and 
proof  introduced  by  the  plaintiff  (setting  out  all  the  testimony 
introduced  by  plaintiff)  is  true,  and  further  admits  as  true  all 
proper  and  legal  deductions  and  inferences  therefrom  in  law.  The 
defendant  offers  to  admit  that  the  facts  so  stated  are  the  facts  in 
the  case,  and  were  proven  entirely  by  plaintiff  and  his  witnesses, 
and  does  now  aver  that  the  facts  so  stated  present  no  ground  for  a 
recovery  against  it  under  the  pleadings  in  this  cause,  and  this  it  is 
ready  to  verify.  Wherefore,  defendant  prays  the  Court  to  allow 
this  demurrer,  and  direct  plaintiff  to  join  therein;  and  judgment 
of  the  Court  accordingly;  and  that  plaintiff  may  be  barred  against 
having  or  maintaining  his  action  against  it,  or  further  prosecuting 
the  same. 

"  East  and  Fogg, 
"C.  D.  Porter, 
"J.  D.  B.  DeBow, 

"  Attorneys." 

It  will  be  observed  that  the  demurrer  in  this  cause  was  in  writing, 
and  set  out  in  full  the  plaintiff's  evidence,  which  is  in  accordance 
with  the  established  practice  in  such  cases. 

Counsel  for  plaintiff  moved  to  dismiss  the  demurrer,  because 
unknown  to  the  forms  or  practice  of  the  law,  and  because  insuffi- 
cient, which  motion  was  by  the  Court  overruled.  Thereupon, 
plaintiff  joined  issue  upon  the  demurrer.     Upon  argument  of  coun- 

^  A  part  of  the  opinion  containing  a  statement  of  the  pleadings  and  evi- 
dence on  which  the  court  decided  that  the  phiintiff  had  failed  to  show  any 
liability  on  the  part  of  the  defendant,  and  a  full  citation  of  authorities,  ia 
omitted.  —  Ed. 


HOPKINS    V.    RAILROAD  305 

sel  and  consideration  by  the  Court  the  demurrer  was  sustained, 
and  the  suit  dismissed.     Plaintiff  appealed,  and  has  assigned  errors. 

The  first  assignment  is  that  the  trial  Judge  erred  in  alloAving  de- 
fendant to  file  a  demurrer  to  the  evidence  sustaining  the  same,  and 
dismissing  the  suit.  It  is  insisted  this  action  of  the  Court  violates 
Article  1,  Section  6  of  the  Constitution  of  the  State,  which  provides 
that  the  right  of  trial  by  jury  shall  remain  inviolate,  etc.;  and  also 
Article  6,  Section  9,  which  ordains:  "  Judges  shall  not  charge  juries 
with  respect  to  matters  of  fact,  but  may  state  the  testimony  and 
declare  the  law."  .  .  . 

We  have  seen  from  the  authorities  that  the  only  province  of  the 
jury  is  to  settle  disputed  questions  of  fact,  while  the  office  of  the 
demurrer  to  the  evidence  is  to  acbnit  the  facts  and  invoke  the  appli- 
cation of  the  law  by  the  Court.  Is  this  practice  in  any  sense  an 
invasion  of  the  constitutional  guaranty  "  that  the  right  of  trial  b 
jury  shall  remain  inviolate,"  or  is  it  subversive  of  the  other  provi- 
sion "  that  judges  shall  not  charge  juries  with  respect  to  matters  of 
fact,  but  may  state  the  testimony  and  declare  the  law  ?  "  We  do 
not  so  understand  it.  It  is  not  so  understood  in  other  States  of  the 
Union  with  similar  constitutional  provisions.  .  .  . 

It  -wall  be  perceived,  moreover,  that  in  every  State  of  the  Union 
the  Judge  is  allowed  to  withdraw  a  case  from  the  jury  whenever 
there  is  a  destitution  of  any  competent,  relevant,  and  material 
evidence  to  support  the  issue,  and  this  authority  is  exercised,  either 
by  directing  a  verdict  sustaining  a  demurrer  to  the  evidence  or  en- 
forcing a  compulsory  nonsuit,  as  the  practice  may  prevail  in  the 
particular  State.  This  fact  is  incontestable,  and  is  abundantly 
shown  in  the  overflow  of  cases  already  cited. 

But  it  is  argued  by  counsel  for  plaintiff  in  error  that,  whatever 
may  be  the  practice  in  other  States  of  the  Union,  the  adjudications 
of  this  Court  are  against  either  form  of  practice,  and  necessarily  so, 
since  the  Constitution  of  Tennessee  not  only  secures  the  right  of 
trial  by  jury,  but  further  declares  that  "  Judges  shall  not  charge 
juries  with  respect  to  matters  of  fact,  but  may  state  the  testimony 
and  declare  the  law."  As  already  seen,  the  first  clause  in  respect 
of  the  trial  by  jury,  is  found  in  the  Constitution  of  all  the  States 
in  one  form  or  another,  but  the  latter  clause  is  found  in  the  organic 
law  of  only  five  States.  We  do  not  think  the  latter  clause  adds 
anything  to  the  prohibition  contained  in  the  first  clause.  The 
right  of  trial  by  jury,  ex  vi  termini,  means  that  Judges  shall  not 
charge  juries  with  respect  to  matters  of  fact,  but  the  settlement  of 
all  disputed  facts  shall  be  left  exclusive  to  their  province.      This 


306  TRIAL 

Court  in  the  case  of  Ivey  v.  Hodges,  4  Hum.  155,  stated  that  the 
object  of  this  provision  of  our  Constitution  was  "  to  put  a  stop  to 
the  practice  of  summing  up  as  it  was  and  is  yet  practised  in  the 
Courts  of  Great  Britain,  etc.,  which  consists  in  teUing  the  jury  not 
what  was  deposed  to,  but  what  was  proved."  In  other  words,  the 
Court  held  that  where  there  is  a  conflict  in  the  testimony,  the  Judge 
may  state  the  testimony,  but  is  prohibited  from  declaring  what 
facts  are  proved. 

In  the  case  of  Catlett  v.  Railway,  57  Ark.  461,  a  similar  provi- 
sion of  the  Constitution  of  Arkansas  was  drawn  in  question  as  late 
as  1893.  The  Court  said:  "  This  provision  shears  the  Judge  of  a 
part  of  his  magisterial  functions,  but  it  confers  no  new  power  upon 
the  jury.  It  was  the  jury's  province,  before  this  provision  was 
ordained,  to  pass  only  upon  questions  of  fact  about  which  there 
was  some  real  conflict  in  the  testimony,  or  where  more  than  one 
inference  could  reasonably  be  drawn  from  the  evidence.  The  Con- 
stitution has  not  altered  their  province.  It  commands  the  Judge 
to  permit  them  to  arrive  at  their  conclusion  without  any  suggestion 
from  him  as  to  his  opinion  about  the  facts.  As  Judge  Battle  ex- 
pressed it,  in  Sharp  v.  State,  51  Ark.  151 :  '  The  manifest  object  of 
this  prohibition  was  to  give  the  parties  to  the  trial  the  full  benefit 
of  the  judgment  of  the  jury  as  to  facts,  unbiased  and  unaffected  by 
the  opinion  of  the  Judges.  If  there  is  no  evidence  to  sustain  an 
issue  of  fact,  the  Judge  only  declares  the  law  when  he  tells  the  jury 
so.'  The  legal  sufficiency  of  proof  and  the  moral  weight  of  legally 
sufficient  proof  are  very  distinct  in  legal  idea.  The  first  lies  within 
the  province  of  the  Court,  the  last  within  the  province  of  the  jury." 
Wheeler  v.  Schroeder,  4  R.  I.  383. 

It  will  be  found  that  the  practice  in  the  five  States  whose  Con- 
stitutions embody  this  additional  clause  sanction  either  the  com- 
pulsory nonsuit  or  the  right  of  the  Judge  to  direct  a  verdict,  in 
either  case  confessedly  a  more  radical  procedure  than  the  demurrer 
to  the  evidence.  .  .  . 

In  the  present  record  we  are  confronted  wath  a  perfectly  plain 
case,  in  which  no  liability  is  estabhshed  against  the  defendant  upon 
the  facts,  or  upon  any  reasonable  or  legitimate  inference  that  may 
be  made  upon  such  facts.  The  law  of  every  case,  in  whatever  form 
presented,  belongs  to  the  Court.  It  is  not  only  the  prerogative  of 
the  Judge,  but  a  solemn  duty  to  declare  it. 

The  defendant  in  this  case  is  entitled  to  the  judgment  of  the  law, 
upon  the  undisputed  facts  found,  in  the  record.  Our  duty  is  im- 
perative; and,  being  of  opinion  that  in  no  view  of  the  facts  shown 


I 


^v^  N  vj^tXP/^*^    V'^V       t^ 


t 

VOLUNTARY   NONSUIT    OR    DISMISSAL  307 

in  evidence  is  any  liability  made  out  against  the  defendant  com- 
pany, we  affirm  the  judgment  of  the  Circuit  Court.Jt       /p^^^ 

Section  V.  '  ,/  , 

Voluntary  Nonsuit  or  Dismissal.  ' 

^  [Smith,  Action  at  Law  (2d  ed.),  pp.  115-117.] 

^  With  regard  to  a  nonsuit,  —  the  word  is  derived  from  the  Latin 
r^  nmiseqiiitur,  or,  more  nearly,  from  the  French  ne  suit  pas,  because 
the  plaintiff  does  not  follow  up  his  suit  to  its  legitimate  conclusion; 
for,  in  the  ancient  times,  before  the  jury  gave  their  verdict,  the 
plaintiff  was  called  upon  to  hear  it,  in  order  that,  if  it  proved  ad- 
verse to  him,  he  might  be  held  answerable  for  the  fine  which  was 
in  those  days  levied  upon  an  unsuccessful  plaintiff.  If  he  did  not  I 
appear  when  thus  called  on,  he  was  nonsuited,  that  is,  adjudged  to  | 
have  deserted  his  action,  and  the  court  gave  judgment  against  him  ^ 
for  his  default.  And  hence  proceeds  the  ceremony  which  takes 
place,  even  at  this  day,  of  calling  the  plai7itiff  to  come  into  the  court 
when  about  to  be  nonsuited,  and  warning  him,  that  he  will  lose 
his  writ  of  nisi  prius,  that  is,  that  he  ^^^ll  lose  the  benefit  of  the  jury 
process  by  which  he  has  convened  the  jury  who  are  now  about  to 
become  superfluous  in  consequence  of  his  default  in  not  appearing. 
Another  consequence  of  the  ancient  practice  is,  that  a  plaintiff  can- 
not be  nonsuited  against  his  will ;  for  a  default  is,  in  the  nature  of 
things,  voluntar}^,  and,  when  he  is  called  on  to  appear,  he  may,  if  he 
think  fit,  make  answer  by  his  counsel,  and,  if  he  do,  there  can  be 
no  nonsuit;  and,  although  it  is  usual,  and,  certainly,  highly  proper, 
for  the  plaintiff's  counsel  to  yield  to  the  opinion  of  the  judge,  when 
the  latter  intimates  that  his  case  is  not  made  out,  and  that  he  ought 
to  suffer  a  nonsuit,  still,  there  have  been  instances,  in  which  the 
plaintiff's  counsel  have  persisted  in  appearing,  and  have  even 
gained  a  verdict  by  their  pertinacity.  But  it  is  very  dangerous  to 
resist  the  judge  when  he  is  of  opinion  that  there  ought  to  be  a  7ion- 
suit,  for,  if  the  plaintiff  disregard  his  intimation,  he  is  certain  to 

*  On  the  general  subject  of  demurrers  to  evidence,  see  Gibson  v.  Hunter,  2 
H.  Bl.  187;  Fowle  v.  Common  Council  of  Alexandria,  11  Wheat.  (U.  S.),  320; 
Slocura  V.  New  York  Life  Ins.  Co.,  228  U.  S.  364,  388-392,  409-418,  57  L.  ed. 
879,  33  S.  Ct.  523;  Copeland  v.  New  England  Insiu-ance  Co.,  22  Pick.  (Mass.), 
135;  Ware  v.  McQuillan,  54  Miss.  703;  Colegrove  v.  N.  Y.  &  N.  H.  R.  R.  Co., 
20  N.  Y.  492.  And  see  2  Tidd,  Practice,  9th  ed.,  865;  Thayer,  Preliminary 
Treatise  on  Evidence  at  the  Common  Law,  235-239;  Thayer,  Cases  on  Evi- 
dence, 2d  ed.,  201-238.  —  Ed. 

^/-tvw    (cl-^--^     Q/c^y^'^ 


\J\J~   "WV" 


308  TRIAL 

direct  the  jury  to  find  a  verdict  for  the  defendant,  and  though  it  is 
true  that  the  plaintiff,  whether  he  submit  to  a  nonsuit  or  have  a 
verdict  found  against  him,  must  equally  pay  costs  to  the  defendant, 

'  still  there  is  this  great  practical  difference  between  a  verdict  for  the 
defendant  and  a  nonsuit,  namely,  that  the  former  has  the  effect  of 
forever  barring  and  determining  his  right  of  action,  whereas,  after 

i  the  latter,  he  may  bring  a  fresh  action,  and,  if  he  come  prepared 

I  \vith  better  evidence,  may  perhaps  succeed  in  it. 

TEMPLETON  &  McKEE  v.   WOLF. 
Supreme  Court  of  Missouri.     1853. 

[Reported  19  Missouri,  101.] 

Gamble,  J.  In  this  case,  the  court  having  given  certain  instruc- 
tions to  the  jury,  after  the  evidence  was  closed,  the  plaintiffs  asked 
that  they  might  be  allowed  to  take  a  nonsuit,  but  the  court  refused 
to  permit  it,  and  a  verdict  and  judgment  were  given  for  the 
defendant. 

The  statutes  of  this  state  have  always  recognized  the  right  of  a 
plaintiff  to  take  a  nonsuit,  and  have  limited  its  exercise  to  the  time 
previous  to  the  retiring  of  the  jury  to  consider  their  verdict.  This 
practice  is  not  affected  by  the  code,  being  entirely  consistent  with  it. 

The  judgment  is  reversed,  and  the  cause  remanded,  the  other  judges 
concurring.^ 

FOX  V.  THE  STAR  NEWSPAPER  CO.,  LIMITED. 
House  of  Lords.     1899. 

[Reported  (1900)  Appeal  Cases,  19.] 

At  the  trial  of  this  action  for  libel  before  Lord  Russell  of  Kil- 
iowen,  C.  J.,  and  a  special  jury  the  plaintiff  through  his  counsel 
elected  to  offer  no  evidence  and  claimed  to  be  nonsuited.  The 
Lord  Chief  Justice  ruled  that  there  must  be  a  verdict  for  the 
defendants;  the  jury  found  a  verdict  accordingly  and  judgment 
was  entered  for  the  defendants. 

1  See  Parks  v.  Southern  Ry.  Co.,  74  C.  C.  A.  414,  143  Fed.  276;  Moore- 
Mansfield  Co.  V.  Marion,  etc.,  Co.,  52  Ind.  App.  548,  101  N.  E.  15;  Shaw  v. 
Boland,  15  Gray  (Mass.),  571;  Carpenter  &  Sons  Co.  v.  New  York,  etc.,  R.  R., 
184  Mass.  98,  68  N.  E.  28;  Lawyers'  Co-op.  Pub.  Co.  v.  Gordon,  173  Mo. 
139,  73  S.  W.  155;  Bee  Bldg.  Co.  v.  Dalton,  68  Neb.  38,  93  N.  W.  930,  4  Ann. 
Cas.  508.  — Ed. 


FOX   V.    THE    STAR   NEWSPAPER    COMPANY,    LIMITED  309 

An  application  to  set  aside  the  verdict  and  judgment  was  dis- 
missed by  the  Court  of  Appeal  (A.  L.  Smith,  Chitty,  and  Collins, 
L.  J  J.)  with  costs. 

This  appeal  was  brought  by  the  plaintiff.  .  .  . 

Dec.  15.  Earl  of  Halsbury,  L.  C.  My  Lords,  this  was  an 
action  for  libel.  After  the  jury  had  been  sworn  and  the  pleadings 
opened,  the  plaintiff  claimed  to  be  nonsuited;  the  Lord  Chief 
Justice  held  that  he  was  not  entitled  to  be  nonsuited,  and  directed 
a  verdict  for  the  defendants. 

The  sole  question  on  this  appeal  is  whether  the  old  system  by 
which  a  plaintiff  at  his  own  election  could  lose  his  writ,  as  it  was 
said,  and  at  his  election  bring  another  action  for  the  same  cause, 
is  still  a  system  which  exists  in  our  law.  I  am  very  clearly  of 
opinion  that  it  does  not. 

Our  whole  system  has  been  changed,  and  I  think  the  reason 
why  the  word  "  nonsuit  "  itself  is  not  now  to  be  found  in  the  rules 
is  that  it  was  determined  that  the  power  of  a  plaintiff  at  the  com- 
mon law  to  claim  a  nonsuit,  or  the  plaintiff  in  equity  to  dismiss  his 
bill  at  his  own  option,  should  no  longer  be  permitted,  and  it  is 
probable  that  the  word  "  discontinuance  "  was  supposed  to  apply 
to  both  forms  of  procedure  both  at  common  law  and  in  equity. 
Accordingly  by  Order  xxvi.,  r.  1,^  the  only  mode  by  which  a  plaintiff 
can  submit  to  defeat  is  under  that  Order,  unless  he  allows  the 
proceedings  to  go  on  until  the  verdict  is  recorded  against  him. 

The  word  "  discontinuance  "  no  doubt  had,  under  a  former 
system,  the  more  limited  application,  and  the  old  system  of  non- 
suit is  manifestly  no  longer  capable  of  being  reconciled  with  the 
new  procedure  either  in  form  or  substance.  The  substance  is  that 
when  it  once  comes  into  court,  and  when  the  plaintiff  offers  no 
support  to  his  action,  there  must  be  a  verdict  for  the  defendant. 
That  is  the  course  pursued  by  the  Lord  Chief  Justice.  I  think  it 
was  entirely  right,  and  I  move  your  Lordships  that  this  appeal  be 
dismissed  with  costs. 

Lords  Macnaghten,  Morris,  and  Shand  concurred. 
Order  appealed  from  affirmed  and  appeal  dismissed  with  costs. 

^  Order  XXVI,  rule  1,  provides:  "The  plaintiff  may,  at  any  time  before 
receipt  of  the  defendant's  defence,  or  after  the  receipt  thereof  before  taking 
any  other  proceeding  in  the  action  (save  any  interlocutory  appUcation),  by 
notice  in  writing,  wholly  discontinue  his  action  against  all  or  any  of  the  de- 
fendants or  withdraw  any  part  or  parts  of  his  alleged  cause  of  complaint,  and 
thereupon  he  shall  pay  such  defendant's  costs  of  the  action,  or  if  the  action  be 
not  wholly  discontinued,  the  costs  occasioned  by  the  matter  so  withdrawn. 
Such  costs  shall  be  taxed,  and  such  discontinuance  or  withdrawal,  as  the  case 


310  TRIAL 

HUFFSTUTLER    v.    LOUISVILLE    PACKING    COMPANY. 

Supreme  Court  of  Alabama.     1908. 

[Reported  154  Alabama,  291.] 

Appeal  from  Birmingham  City  Court. 

Heard  before  Hon.  C.  W.  Ferguson. 

Action  by  the  Louisville  Packing  Company  against  Hamilton 
H.  Huffstutler.  From  a  judgment  granting  a  motion  of  plaintiff 
to  dismiss  the  suit,  defendant  appeals.     Affirmed. 

Defendant  interposed  as  a  defense  to  the  suit  a  counterclaim  by 
way  of  set-off  and  recoupment.  After  the  plaintiff  had  made  out 
its  case,  which  was  not  denied  by  the  defendant,  and  after  the  de- 
fendant had  introduced  evidence  of  his  counterclaim  or  set-off,  the 
plaintiff  offered  to  take  a  nonsuit,  with  bill  of  exceptions.  The 
court  refused  to  allow  the  plaintiff  to  take  this  nonsuit,  and  there 
was  verdict  and  judgment  for  the  defendant  against  the  plaintiff 
in  the  sum  of  $620.  The  plaintiff  thereupon  moved  the  court  to 
set  aside  the  judgment,  on  the  ground  that  the  court  erred  in  not 
allowing  plaintiff  to  take  his  nonsuit,  and  from  this  motion  setting 
aside  the  verdict  and  judgment  this  appeal  is  prosecuted.  .  .  . 

Anderson,  J.  The  general  rule  is,  where  the  plaintiff  has  in- 
stituted a  civil  action,  he  has  the  right  to  dismiss  or  discontinue  at 
his  own  cost  at  any  time  before  verdict.  This  practice  has  been 
adopted,  even  in  those  cases  where  the  defendant  has  pleaded  a 
set-off  and  introduced  evidence  to  sustain  it.  • —  Griel  v.  Loftin,  65 
Ala.  591 ;  Branham  v.  Brown's  Adm'x,  1  Bailey  (S.  C),  262;  Cum- 
mings  V.  Pruden,  11  Mass.  206;  Waterman  on  Set-Off,  659,  660; 
Breese  v.  Allen,  12  Ind.  426;  Moore  v.  Bres,  18  La.  Ann.  483. 

It  is  insisted  by  counsel  for  the  appellant  that  the  rule  above 
declared  is  merely  applicable  to  the  common  law,  which  does  not 
authorize  judgment  over  for  the  defendant  when  the  cross-demand 
exceeds  the  plaintiff's  claim;  that  our  statutes  authorize  a  judg- 
ment over  for  the  defendant,  upon  pleas  of  set-off  and  recoupment; 
and  that  what  was  said  in  the  case  of  Griel  v.  Loftin,  supra,  was 
dictum.  We  concede  that  what  was  said  in  that  case,  on  this  sub- 
may  be,  shall  not  be  a  defence  to  any  subsequent  action.  Save  as  in  this  rule 
otherwise  provided,  it  shall  not  be  competent  for  the  plaintiff  to  withdraw  the 
record  or  discontinue  the  action  without  leave  of  the  court  or  a  judge,  but 
the  court  or  a  judge  may,  before,  or  at,  or  after  the  hearing  or  trial,  upon  such 
terms  as  to  costs,  and  as  to  any  other  action,  and  otherwise  as  may  be  just, 
order  the  action  to  be  discontinued,  or  any  part  of  the  alleged  cause  of  com- 
plaint to  be  struck  out."  —  Ed. 


HUFFSTUTLER   V.    LOUISVILLE    PACKING    COMPANY  311 

ject,  was  dictum,  as  this  question  was  not  there  involved;  but  the 
expression  of  the  writer  seems  to  be  fortified  by  the  weight  of  au- 
thority, and  what  was  there  said  is  applicable  in  jurisdictions  where 
judgment  over  is  provided,  as  well  as  under  the  common  law,  — 
Anderson  v.  Gregory,  43  Conn.  61;  Merchants'  Bank  of  Canada  v. 
Schulenberg,  54  Mich.  49,  19  N.  W.  741.  This  Michigan  case  was 
by  a  divided  court,  and  resulted  in  an  affirmance  of  the  doctrine 
that  the  plaintiff  can  dismiss  his  suit  at  any  time  before  verdict, 
although  the  defendant  claimed  a  judgment  over,  and  was  author- 
ized, under  the  statute,  to  recover  for  said  excess.  The  opinion 
which  controlled  in  this  case  was  rendered  by  Cooley,  C.  J.,  and 
as  it  deals  with  several  authorities  on  the  subject,  including  the 
case  refied  upon  by  appellant's  counsel,  of  Riley  v.  Carter,  3 
Humph.  (Tenn.),  230,  we  quote  at  length:  "  In  this  case  the  de- 
fendant relied  upon  a  set-off,  which,  he  claimed,  was  larger  than 
the  plaintiff's  demand,  and  he  brings  the  case  to  this  court,  assign- 
ing for  error  the  order  of  the  circuit  court  permitting  the  plaintiff, 
notwithstanding  his  objection,  to  submit  to  a  nonsuit.  The  gen- 
eral right  of  the  plaintiff  to  discontinue  his  suit,  or  to  submit  to  a 
nonsuit,  at  any  time  before  verdict,  is  undoubted;  and,  in  the 
absence  of  any  statute  taking  away  the  right,  it  exists  in  the  cases 
where  set-off  is  relied  upon  to  the  same  extent  as  in  other  cases. 
This  is  fully  recognized  in  Cummings  v.  Pruden,  11  Mass.  206,  and 
Branham  v.  Brown's  Adm'x,  1  Bailey  (S.  C),  262.  In  several  states 
statutes  have  been  passed  taking  away  the  right;  but  we  have  no 
such  statute.  The  fact  that  the  statute  of  set-offs  permits  judg- 
ment to  be  taken  by  the  defendant  for  the  balance  found  due  him 
does  not  preclude  a  discontinuance.  —  Cummings  v.  Pruden,  supra. 
But  it  is  said  there  are  decisions  to  the  contrary  of  these,  and  several 
are  referred  to.  The  Texas  cases  are  not  in  point,  as  they  are 
decided  under  the  civil  law,  which  does  not  prevail  in  this  state.  — 
Egery  v.  Power,  5  Tex.  501;  Walcott  v.  Hendrick,  6  Tex.  406; 
Bradford  v.  Hamilton,  7  Tex.  5.  The  case  of  Francis  v.  Edwards, 
77  N.  C.  271,  was  decided  upon  a  construction  of  the  Code  of  that 
state,  and  therefore  has  no  bearing.  In  Riley  v.  Carter,  3  Humph. 
(Tenn.),  230,  the  defendant  had  obtained  judgment  for  his  set-off 
in  justice's  court,  and  the  plaintiff  removed  the  case  to  the  circuit 
court  by  certiorari,  and  then,  in  that  court,  was  given  leave  to  dis- 
miss his  suit.  This  was  palpable  error,  and  the  court  so  held;  but 
we  discover  no  analogy  between  that  case  and  this.  The  defendant 
had  his  judgment,  and,  unless  error  was  shown,  had  a  right  to  retain 
it.     The  three  New  York  cases  of  Cockle  v.  Underwood,  3  Duer 


312  TRIAL 

(N.  Y.),  676,  Rees  v.  Van  Patten,  13  How.  Prac.  258,  and  Van  Allen 
V.  Schermerhorn,  14  How.  Prac.  287,  are  not  in  point,  because  de- 
cided under  the  state  Code;  but,  so  far  as  they  can  be  considered 
as  having  a  bearing  they  are  against  the  defendant,  instead  of  for 
him,  for  they  all  recognize  the  power  of  the  court  in  its  discretion 
to  permit  the  plaintiff  to  discontinue,  which  is  all  that  is  necessary 
to  sustain  this  judgment." 

It  seems  that  the  statement  by  the  compiler  on  page  848  of  6 
Am.  &  Eng.  Ency.  of  PI.  &  Pr.,  as  to  the  modern  rule,  is  not  sus- 
tained by  the  weight  of  authority  as  to  actions  of  law,  but  does 
obtain  in  chancery.  The  leading  authority  to  the  effect  that  a 
dismissal  by  the  plaintiff  will  not  deprive  the  defendant  of  his  right 
to  a  judgment  over  is  the  case  of  East  St.  Louis  v.  Thomas,  102  111. 
453.  In  that  jurisdiction,  they  have  a  statute  providing  that, 
"  when  a  plea  of  set-off  shall  have  been  interposed,  the  plaintiff 
shall  not  be  permitted  to  dismiss  his  suit  without  the  consent  of  the 
defendant  or  leave  of  court." 

Whether  the  plaintiff  was  entitled  to  a  bill  of  exceptions,  under 
section  614  of  the  Code  of  1896,  or  not,  because  his  claim  was  ad- 
mitted by  the  defendant  and  there  was  no  adverse  ruling  in  refer- 
ence to  same,  we  need  not  decide,  as  it  is  clear  he  had  the  right  to 
nonsuit  or  dismiss  at  any  time  before  the  verdict.  The  trial  court 
erred  in  not  permitting  the  plaintiff  to  dismiss  his  case,  and  properly 
corrected  the  error  by  granting  the  motion  for  a  new  trial. 

The  judgment  of  the  city  court  is  affirmed.^ 

Tyson,  C.  J.,  and  Simpson  and  McClellan,  JJ.,  concur. 

^  For  conflicting  views  on  the  question  involved  in  the  principal  case,  see 
Fowler  v.  Lawson,  15  Ark.  148;  Gurr  v.  Brinson,  138  Ga.  665,  75  S.  E.  979; 
Hickman  v.  Hunter  (la.,  1913),  140  N.  W.  425;  Cummings  v.  Pruden,  11  Mass. 
206;  Fink  ;;.  Bruihl,  47  Mo.  173;  Hamlin  v.  Walker,  228  Mo.  611,  128  S.  W. 
945;  Block  v.  Ottenberg,  53  N.  Y.  Misc.  Rep.  647,  103  N.  Y.  Supp.  739;  Boyle 
v.  Stallings,  140  N.  C.  524,  53  S.  E.  346;  Bertschy  v.  McLeod,  32  Wis.  205. 
See  2  Thompson  Trials,  2d  ed.,  sec.  2232,  and  a  note  to  the  principal  case  in 
15  L.  R.  A.  (N.S.),  340.  —  Ed. 


CENTRAL  TRANS.  CO.  V.    PULLMAN 's  CAR  CO.        313 

Section  VI. 

Compulsory  Nonsuit  or  Dismissal  and  Directed  Verdict. 

CENTRAL  TRANSPORTATION  COMPANY  v.  PULLMAN'S 
PALACE   CAR  COMPANY. 

Supreme  Court  of  the  United  States.     189L 
[Reported  139  United  States,  24.] 

Gray,  J.^  The  principal  defence  in  this  case,  duly  made  by  the 
defendant,  by  formal  plea,  as  well  as  by  objection  to  the  plaintiff's 
evidence,  and  sustained  by  the  Circuit  Court,  was  that  the  in- 
denture of  lease  sued  on  was  void  in  law,  because  beyond  the 
powers  of  each  of  the  corporations  by  and  between  whom  it  was 
made. 

There  is  a  preliminary  question  of  practice,  arising  out  of  the 
manner  in  which  the  case  was  disposed  of  below,  which  is  deserving 
of  notice,  although  not  mentioned  by  counsel  in  argument. 

The  Circuit  Court,  in  ordering  a  nonsuit  because  in  its  opinion 
the  evidence  offered  by  the  plaintiff  was  insufficient  in  law  to  main- 
tain the  action,  acted  in  accordance  with  the  statute  of  Pennsyl- 
vania, which  provides  that  "  it  shall  be  la'w^ul  for  the  judge 
presiding  at  the  trial  to  order  a  judgment  of  nonsuit  to  be  entered, 
if  in  his  opinion  the  plaintiff  shall  have  given  no  such  evidence  as 
in  law  is  sufficient  to  maintain  the  action,  with  leave,  nevertheless, 
to  move  the  court  in  banc  to  set  aside  such  judgment  of  nonsuit; 
and  in  case  the  said  court  in  banc  shall  refuse  to  set  aside  the  non- 
suit, the  plaintiff  may  remove  the  record  by  WTit  of  error  into  the 
Supreme  Court  for  revision  and  review,  in  like  manner  and  with 
like  effect  as  he  might  remove  a  judgment  rendered  against  him 
upon  a  demurrer  to  evidence."  Penn.  Stats.,  March  11,  1836,  c. 
34,  §  7;  March  11,  1875,  c.  8;  2  Purdon's  Digest  (11th  ed.),  1362, 
J363. 

Under  that  statute,  as  expounded  by  Chief  Justice  Gibson,  the 
judge  can  order  a  nonsuit,  only  when  all  the  evidence  introduced, 
vaih  every  inference  of  fact  that  a  jury  might  draw  from  it  in  favor 
of  the  plaintiff,  appears  to  be  insufficient  in  matter  of  law  to  sustain 
a  verdict;  and  the  defendant's  motion  for  a  nonsuit  is  equivalent 
to  a  demurrer  to  evidence,  differing  only  in  the  judgment  thereon 
not  being  a  final  determination  of  the  rights  of  the  parties,  for  if  it 

^  The  statement  of  facts  is  omitted  together  with  a  part  of  the  opinion  in 
which  it  was  held  that  the  contract  sued  on  was  utlra  vires.  —  Ed. 


314  TRIAL 

is  in  favor  of  the  plaintiff  the  case  must  be  submitted  to  the  jury, 
and  if  in  favor  of  the  defendant  it  is  no  bar  to  a  new  action.  Smyth 
V.  Craig,  3  Watts  &  Sergeant,  14;  Fleming  v.  Insurance  Co., 
Brightly,  102;  Bournonville  v.  Goodall,  10  Penn.  St.  133. 

It  is  true  that  a  plaintiff,  who  appears  by  the  record  to  have  vol- 
untarily become  nonsuit,  cannot  sue  out  a  writ  of  error.  United 
States  V.  Evans,  5  Cranch,  280;  Evans  v.  Phillips,  4  Wheat.  73; 
Cossar  v.  Reed,  17  Q.  B.  540.  But  in  the  case  of  a  compulsory 
nonsuit  it  is  otherwise;  and  a  plaintiff,  against  whom  a  judgment 
of  nonsuit  has  been  rendered  without  his  consent  and  against  his 
objection,  is  entitled  to  relief  by  writ  of  error.  Elmore  v.  Grymes, 
1  Pet.  469;  Strother  v.  Hutchinson,  4  Bing.  N.  C.  83;  S.  C.  5  Scott, 
346,  6  DowHng,  238;  Voorhees  v.  Coombs,  4  Vroom,  482. 
^  There  are  many  cases  in  the  books,  in  which  this  court  has  held 

^  that  a  court  of  the  United  States  had  no  power  to  order  a  nonsuit 

X  without  the  plaintiff's  acquiescence.      Elmore  v.  Grymes,  above 

cited;  Crane  v.  Morris,  6  Pet.  598,  609;  Silsby  v.  Foote,  14  How 
218;   Castle  v.  Bullard,  23  How.  172,  183.     Yet,  instead  of  over 
ruling,  upon  that  ground  alone,  exceptions  to  a  refusal  to  order  a 
nonsuit,  this  court,  more  than  once,  has  considered  and  determined 
questions  of  law  upon  the  decision  of  which  the  nonsuit  was  refused 

>s^  in  the  court  below.     Crane  v.  Morris  and  Castle  v.  Bullard,  above 

■J  ' 

;^  cited. 

i^  The  difference  between  a  motion  to  order  a  nonsuit  of  the  plain- 

,■"*  tiff  and  a  motion  to  direct  a  verdict  for  the  defendant  is,  as  observed 

^  by  Mr.  Justice  Field,  delivering  a  recent  opinion  of  this  court, 

"  rather  a  matter  of  form  than  of  substance,  except  [that]  in  the 
case  of  a  nonsuit  a  new  action  may  be  brought,  whereas  in  the  case 
of  a  verdict  the  action  is  ended,  unless  a  new  trial  be  granted,  either 
upon  motion  or  upon  appeal."  Oscanyan  v.  Arms  Co.,  103  U.  S. 
261,  264. 

Whether  a  defendant  in  an  action  at  law  may  present  in  the  one 
form  or  in  the  other,  or  by  demurrer  to  the  evidence,  the  defence 
that  the  plaintiff,  upon  his  own  case,  shows  no  cause  of  action,  is  a 
question  of  "  practice,  pleadings,  and  forms  and  modes  of  proceed- 
ing," as  to  which  the  courts  of  the  United  States  are  now  required 
by  the  act  of  Congress  of  June  1,  1872,  c.  255,  §  5  (17  Stat.  197), 
reenacted  in  §  914  of  the  Revised  Statutes,  to  conform,  as  near  as 
may  be,  to  those  existing  in  the  courts  of  the  State  within  which 
the  trial  is  had.  Sawin  v.  Kenny,  93  U.  S.  289;  Ex  parte  Boyd, 
105  U.  S.  647;  Chateaugay  Co.,  petitioner,  128  U.  S.  544;  Glenn 
V.  Sumner,  132  U.  S.  152,  156. 


FLETCHER   V.    LONDON    AND    NORTHWESTERN    R.    CO.  315 

It  is  doubtless  witliin  the  authority  of  the  presiding  judge,  and 
is  often  more  convenient,  in  order  to  prevent  the  case  from  being 
brought  up  in  such  a  form  that  the  judgment  of  the  court  of  last 
resort  will  not  finally  determine  the  rights  of  the  parties,  to  adopt 
the  course  of  directing  a  verdict  for  the  defendant  and  entering 
judgment  thereon. 

But  the  judgment  of  nonsuit,  being  a  final  judgment  disposing 
of  the  particular  case,  and  rendered  upon  a  ruling  in  matter  of  law, 
duly  excepted  to  by  the  plaintiff,  is  subject  to  be  reviewed  in  this^^ 
court  by  writ  of  error. 

It  was  therefore  rightly  assumed  by  the  counsel  of  both  parties 
at  the  argument  that  the  only  question  to  be  determined  is  of  the 
correctness  of  the  ruling  sustaining  the  defence  of  ultra  vires,  inde- 
pendently of  the  form  in  which  that  question  was  presented  and 
disposed  of.  .  .  .  Judgment  affirmed} 

Mr.  Justice  Brown,  not  having  been  a  member  of  the  court 
when  this  case  was  argued,  took  no  part  in  its  decision. 


FLETCHER  v.   LONDON   AND   NORTHWESTERN 
RAILWAY   COMPANY. 

Court  or  Appeal.     189L 
[Reported  (1892)  1  Queen's  Bench,  122.] 

Motion  by  the  plaintiff  for  a  new  trial. 

The  action  was  for  damages  for  personal  injuries  alleged  to  have 
been  caused  through  the  negligence  of  the  defendants'  servants. 

At  the  trial,  Wright,  J.,  after  hearing  the  opening  of  the  plain- 
tiff's counsel,  stating  the  case  which  he  expected  to  prove,  non- 
suited the  plaintiff  ^\^thout  the  consent  of  his  counsel,  and  in  spite 
of  his  insisting  that  he  ought  to  be  allowed  to  call  his  witnesses. 

1  There  is  a  conflict  of  authority  on  the  question  whether  the  plaintiff  may 
be  nonsuited  against  his  will.  See  cases  cited  in  Hopkins  v.  Nashville  C.  & 
St.  L.  Ry.,  96  Tenn.  409,  34  S.  W.  1029,  32  L.  R.  A.  354;  2  Thompson,  Trials, 
2d  ed.,  sec.  2228. 

A  territorial  statute  allowing  a  compulsory  nonsuit  does  not  deprive  the 
plaintiff  of  the  right  of  trial  by  jury  under  the  Seventh  Amendment  to  the 
Constitution  of  the  United  States.  Coughran  v.  Bigelow,  164  U.  S.  301,  41  L. 
ed.  442,  17  S.  Ct.  117. 

A  conpulsory  nonsuit,  like  a  voluntary  nonsuit,  does  not  deprive  the  plain- 
tiff of  the  right  to  bring  a  new  action  for  the  same  cause.  Mason  v.  Kansas 
City  Belt  Ry.  Co.,  226  Mo.  212,  12.5  S.  W.  1128,  26  L.  R.  A.  (n.s.),  914.  —  Ed. 


316  TRIAL 

Lord  Esher,  M.  R.^  I  am  of  opinion  that  the  learned  judge 
struck  too  soon.  I  will  state  the  proposition  in  its  broadest  form. 
In  my  opinion  a  judge  has  no  right,  without  the  consent  of  the 
plaintiff's  counsel,  to  non-suit  the  plaintiff  upon  his  counsel's  open- 
ing statement  of  the  facts.  The  opening  of  counsel  may  be  incor- 
rect in  consequence  of  his  having  had  wrong  instructions.  Owing 
to  some  accident,  even  with  the  greatest  care,  the  evidence  of  the 
witnesses  when  they  are  called  may  differ  from  that  which  has  been 
opened  by  counsel.  It  is  for  that  very  reason  that  a  right  of  reply 
is  given  to  the  plaintiff's  counsel,  and  in  recent  times  a  right  to  sum 
up  the  evidence  has  been  given  to  the  plaintiff's  counsel,  and  the 
defendant's  respectively,  after  his  witnesses  have  been  called.  The 
experience  of  judges  and  of  practitioners  shews  that  the  evidence 
often  turns  out  to  be  somewhat  different  from  that  which  appears 
in  the  instructions  given  to  counsel.  Therefore  I  state  this  prop- 
osition in  its  full  extent  —  a  judge  has  no  right  to  non-suit  a 
plaintiff  upon  his  counsel's  opening  without  the  consent  of  the 
counsel.  That  is  what  the  learned  judge  has  done  in  the  present 
case.  There  was  no  assent  on  the  part  of  the  plaintiff's  counsel. 
On  the  contrary,  the  plaintiff's  counsel  insisted  upon  his  right  to 
have  the  plaintiff's  witnesses  called,  but,  notwithstanding  this,  the 
learned  judge  persisted  in  non-suiting  the  plaintiff  on  his  counsel's 
opening.  I  think  he  was  wrong  in  so  doing,  and  the  case  must  go 
down  for  trial.  Order  for  7ieiv  trial  accordingly.^ 


KELLY,  Administrator,  v.  BERGEN  COUNTY  GAS  CO. 

Court  of  Errors  and  Appeals  of  New  Jersey.     1907. 

[Reported  74  New  Jersey  Law,  604.] 

Magie,  Chancellor.^  Upon  the  opening  of  the  counsel  for  the 
plaintiff  in  the  trial  of  the  issue  in  this  cause  the  learned  trial  justice 
directed  a  nonsuit.  Thereafter,  judgment  for  the  defendant  was 
entered  and  this  writ  of  error  was  taken.  The  error  assigned  was 
the  granting  of  the  nonsuit. 

1  The  concurring  opinions  of  Lopes,  L.J.,  and  Kay,  L.J.,  are  omitted.  —  Ed. 

2  Pietsch  V.  Pietsch,  245  111.  454,  92  N.  E.  325,  29  L.  R.  A.  (n.s.),  218; 
Fisher  v.  Fisher,  5  Wis.  472,  accord.  Oscanyan  v.  Winchester  Repeating  Arms 
Co.,  103  U.  S.  261,  26  L.  ed.  539;  Hey  v.  Prime,  197  Mass.  474,  84  N.  E.  141, 
17  L.  R.  A.  (n.s.),  570  (semblc);  Crisup  v.  Grosslight,  79  Mich.  380,  44  N.  W. 
621;  Pratt  v.  Conway,  148  Mo.  291,  49  S.  W.  1028,  71  Am.  St.  Rep.  602 
(semble),  contra.  —  Ed. 

2  A  part  of  the  opinion  is  omitted.  —  Ed. 


KELLY  V.    BERGEN  COUNTY  GAS  COMPANY         317 

A  motion  for  a  nonsuit  u})on  the  opening  of  counsel  is  not  fre- 
quently resorted  to.  In  dealing  with  it,  it  is  obvious  that  the  rule 
which  is  applied  to  a  motion  for  a  nonsuit  at  the  close  of  plaintiff's 
evidence  is  the  one  which  should  be  apphed.  In  both  cases,  the 
question  presented  is  whether  the  facts  stated  or  proved,  and  rea- 
sonable inferences  which  may  he  drawn  therefrom,  disclose  that  the 
plaintiff  is  not  entitled  to  submit  his  case  to  the  jury,  because  a  ver- 
dict in  his  favor  could  not  be  maintained.  In  practice,  a  motion 
for  a  nonsuit,  made  upon  the  opening  of  counsel,  is,  perhaps,  more 
hberally  treated  than  an  application  for  a  nonsuit  at  the  close  of 
the  plaintiff's  case.  In  the  former  case,  if  objection  be  made  to  a 
statement  too  meagre  to  sustain  the  plaintiff's  case,  counsel  will, 
doubtless,  be  permitted  to  enlarge  his  statement.  But  in  the  haste 
required  by  the  pressure  of  business  at  the  present  day,  counsel,  in 
general,  restrict  themselves  to  a  mere  outline  of  the  case  they  de- 
sign to  present. 

The  opening  appearing  in  the  bill  of  exceptions  is  somewhat 
meagre,  and  if  objected  to  on  that  ground,  counsel  would,  no  doubt, 
have  been  permitted  to  make  his  statement  more  complete. 

But  I  think  it  does  present  a  case  for  the  jury  if  the  facts  stated 
therein  were  proved.  It  appears  thereby  that  the  defendant  com- 
pany, which  furnishes  light  to  a  municipality,  maintained  wires 
upon  a  pole,  and  through  those  wires  transmitted  at  times  a  current 
which  was  dangerous.  Upon  the  same  pole  were  strung  vAres  of  a 
telephone  company  by  which  plaintiff's  intestate  was  emploj'ed  as 
a  lineman.  The  nature  of  the  relation  between  the  telephone  com- 
pany and  the  defendant  company  was  not  stated  in  the  opening. 
But  from  the  fact  that  the  telephone  company  was  maintaining 
the  wires  used  in  the  business  of  that  company  upon  the  pole,  it 
may  be  reasonably  inferred  that  that  company  had  acquired  a 
right  to  so  maintain  them.  If  that  inference  were  drawn,  it  would 
also  follow  that  the  telephone  company  had  a  right  to  resort  to 
those  wires  for  repairing  and  rearranging  them.  Its  workmen, 
when  sent  to  make  rei)airs  or  to  rearrange  the  wires,  if  in  such  em- 
ployment they  were  required  to  ascend  the  poles,  would  not  be 
trespassers,  nor  would  they  resort  to  the  summit  of  the  poles  out 
of  mere  curiosity,  but  they  would  be  there  to  exercise  the  right 
which  their  employer  had  in  respect  to  its  wires.  It  would  also 
follow  that  the  defendant  company  might  be  inferred  to  have 
knowledge  that  in  the  exercise  of  that  right  of  the  telephone  com- 
pany the  workmen  of  the  latter  company  would  be  compelled  to 
ascend  the  poles  and  be  brought  into  very  close  proximity  with  the 


318  TRIAL 

wires  of  the  defendant  company,  and  it  might  be  therefrom  in- 
ferred that  a  duty  devolved  upon  the  company  to  use  reasonable 
care  not  to  endanger  the  safety  of  such  workmen  by  the  dangerous 
current  passing  through  its  wires.  .  .  . 

Counsel,  in  his  opening,  asserted  that  the  defendant  company 
had  failed  in  the  performance  of  the  duty  cast  upon  it  in  two  re- 
spects—  first,  by  having  its  wires  apparently  insulated  while  the 
insulation  was,  in  fact,  defective;  and  second,  by  sending  a  dan- 
gerous current  through  its  wires  at  a  time  which  was  unusual  and 
without  notice. 

The  defendant  company  was  a  company  for  lighting  the  munic- 
ipality and,  customarily,  sent  its  current  through  the  wires  only 
after  the  lights  were  required  to  be  used.  The  plaintiff's  intestate 
was  killed  by  a  current  passing  through  the  wires  at  half-past  four 
in  the  afternoon,  in  midsummer. 

If  the  motion  for  a  nonsuit  had  been  made  upon  the  ground  that 
the  opening  failed  to  disclose  an  act  of  negligence  on  the  part  of 
the  defendant  company,  I  think  it  would  have  been  properly  re- 
fused. For  the  reasons  above  given,  I  think  that  the  opening, 
though  meagre  in  statement,  yet  contained  enough  facts  which 
permitted  sufficiently  reasonable  inferences  therefrom,  so  as  to 
make  out  the  plaintiff's  case,  if  the  facts  were  proved. 

But  the  application  was  distinctly  put  by  counsel  for  the  defend- 
ant company  upon  an  admission  made  in  the  opening  to  the  effect 
that  plaintiff's  intestate  had  handled  the  wire  of  the  defendant 
company  with  naked  hands  and  without  the  protection  of  rubber 
gloves,  and  that  that  admission  indicated  that  the  deceased  had 
failed  to  take  that  care  for  his  personal  safety  which  every  man  is 
required  to  take,  and  thereby  negligently  contributed  to  the  injury 
which  occasioned  his  death.  It  is  obvious,  moreover,  from  the 
colloquy  which  took  place  between  the  trial  justice  and  the  counsel, 
that  the  granting  of  the  motion  to  nonsuit  was  placed  by  the  justice 
entirely  upon  this  ground,  and  he  gave  no  consideration  whatever 
to  any  supposed  defect  in  the  opening  on  any  other  point. 

As  was  said  by  Justice  O'Brien  in  the  case  of  Hoffman  House  v. 
Foote,  172  N.  Y.  348,  in  deahng  with  a  question  of  a  judgment 
dismissing  the  plaintiff's  complaint  upon  the  opening  of  counsel, 
the  plaintiff's  counsel  may,  in  his  opening  address,  by  some  admis- 
sion or  statement  of  facts,  so  completely  ruin  his  case  that  the  court 
is  justified  in  granting  a  nonsuit.  That  was  the  position  which  the 
defendant  company  assumed  in  supporting  this  application  for  a 
nonsuit,  and  the  learned  justice  who  presided  at  the  trial  found 


BERRY   V.    DRYDEN  319 

that  by  the  admission  of  the  counsel  of  the  plaintiff  a  fact  was  in- 
troduced which  required  the  case  to  be  taken  from  the  jury. 

But  the  learned  trial  justice,  in  reaching  the  conclusion  that  the 
contributory  negligence  of  plaintiff's  intestate  was  a  necessary  in- 
ference from  the  admitted  fact  that  he  handled  the  wire  without 
the  protection  of  rubber  gloves,  ignored  two  facts  also  stated  in  the 
opening.  One  fact  was  that  the  wire  handled  appeared  to  be  pro- 
tected by  insulation,  but  that  the  insulation  was  defective.  The 
other  fact  was  that  the  wires  of  the  defendant  company  did  not 
ordinarily  carry  any  current  in  the  daytime,  which  fact  was  known 
to  plaintiff's  intestate. 

In  my  judgment,  upon  the  whole  opening,  if  proved,  it  was  for 
the  jury  to  say  whether,  with  this  knowledge,  the  lineman  was  neg- 
ligent in  assuming  that  there  was  no  risk  in  handling  such  a  wire, 
which  was  not  then  customarily  employed  in  distributing  a  current 
for  electric  light,  and  which  appeared  to  be  insulated.  The  case, 
in  respect  to  assumption  of  risk,  is  not  unlike  the  case  of  Snyer  v. 
New  York  and  New  Jersey  Telephone  Co.,  44  Vroom,  535,  in  which, 
under  similar  circumstances,  this  court  declared  that  there  was  a 
question  for  the  jury  on  that  subject. 

The  result  is  that  the  judgment  must  be  reversed  for  a  venire  de 
novo} 

For  affirmance  —  None. 

For  reversal  —  The  Chancellor,  Chief  Justice,  Garrison, 
Fort,  Hendrickson,  Pitney,  Swayze,  Reed,  Bogert,  Vreden- 
BURGH,  Vroom,  Green,  Dill,  JJ.     13. 


BERRY  V.   DRYDEN. 

Supreme  Court  of  Missouri.     1842. 

[Reported  7  Missouri,  324.] 

Scott,  J.^  Francis  Berry  brought  an  action  of  slander  against 
William  Dryden.  The  declaration  contained  four  counts,  of  which 
the  plaintiff  relied  on  the  first  two.  In  these,  the  words  charged  to 
have  been  spoken,  were  the  following:   "  He  (meaning  the  plain- 

1  Butler  V.  National  Home,  144  U.  S.  64,  36  L.  ed.  351,  12  S.  Ct.  581; 
Brashear  v.  Rabenstein,  71  Kan.  455,  80  Pac.  950;  D'Aloia  v.  Unione  Fratel- 
lanza,  84  N.  J.  L.  683,  87  Atl.  472;  Hoffman  House  v.  Foote,  172  N.  Y.  348, 
65  N.  E.  169,  accord. 

As  to  the  right  to  change  the  opening  statement,  see  Barto  v.  Detroit 
Iron  &  Steel  Co.,  155  Mich.  94,  118  N.  W.  738.  —  Ed. 

-  A  part  of  the  opinion  is  omitted.  —  Eu. 


320  TRIAL 

tiff),  had  sworn  a  lie  in  Kentucky,  and  that  it  was  in  him,  for  he 
had  sworn  what  he  could  prove  to  be  a  point  blank  lie,  this  day, 
before  Squire  Davis.  ..." 

On  the  trial  it  was  proved  that  the  defendant  had  said  of  the 
plaintiff,  that  he  had  sworn  off  a  just  account,  before  Squire  Davis, 
and  that  he  would,  or  could  prove  it,  at  the  circuit  court  by  a  wit- 
ness; that  he  had  been  had  up  for  perjury  in  Kentucky,  and  the 
records  would  show  it. 

The  defendant's  counsel  moved  the  court  to  instruct  the  jury, 
that  the  words  laid  in  the  declaration  were  not  supported  by  the 
proof.  This  instruction  was  given  and  excepted  to,  and  is  now 
assigned  for  error. 

The  plaintiff  has  made  a  preliminary  objection  to  the  instruction, 
and  insists,  that  it  is  the  province  of  the  jury  and  not  of  the  court, 
to  determine  whether  there  is  such  an  identity  between  the  words 
proved,  and  those  laid  in  the  declaration,  as  will  support  the  action. 
This  position  cannot  be  maintained.  Whether  a  variance  exists 
or  not,  between  the  declaration  and  proof,  is  a  question  exclusively 
for  the  determination  of  the  court.  The  jury  ascertains  what 
words  were  spoken,  and  if  there  is  a  variance  between  them  and 
the  words  contained  in  the  declaration,  will  look  to  the  opinion  of 
the  court,  in  order  to  be  informed,  whether  it  is  of  such  a  nature  as 
will  defeat  the  action. 

After  the  many  decisions  that  have  been  made  on  the  subject  of 
variance,  in  actions  of  slander,  no  authority  will  be  required,  to 
show  that  the  words  proved  to  have  been  spoken,  are  not  substan- 
tially the  same  as  those  laid  in  the  declaration.  The  rule  is  stated 
in  the  books,  that  the  slander  proved  must  substantially  corre- 
spond with  that  charged  in  the  declaration.  By  this,  it  is  not  to 
be  understood,  that  if  certain  words  are  employed  to  convey  a 
slanderous  imputation,  those  words  will  support  a  declaration  con- 
taining the  same  imputation  in  different  words.  The  meaning  of 
the  rule  seems  to  be,  that,  if  the  words  charged  to  have  been  spoken 
are  proved,  but  with  the  omission,  or  addition  of  others  not  at  all 
varying,  or  affecting  their  sense,  the  variance  will  not  be  regarded. 
Although  the  words  proved  are  equivaknit  to  the  words  charged  in 
the  declaration,  yet  not  being  the  same  in  substance,  an  action 
cannot  be  maintained;  and  altiiough  the  same  idea  is  convej^ed  in 
the  words  charged  and  those  proved,  yet  if  they  are  not  substan- 
tially the  same  words,  though  they  contain  the  same  charge,  but  in 
different  phraseology,  the  plaintiff  is  not  entitled  to  recover.  In 
Maitland  v.  Goldncy,  2  East,  438,  it  is  said,  "  Though  the  plaintiff 


BERRY   V.    DRYDEN  321 

need  not  prove  all  the  words  laid,  yet  he  must  prove  so  much  of 
them,  as  is  sufficient  to  sustain  his  cause  of  action,  and  it  is  not 
enough  for  him  to  prove  equivalent  words  of  slander."  It  is  neces- 
sary that  this  rule  be  adhered  to,  in  order  to  let  the  party  know 
what  he  has  to  defend,  and  that  he  may  not  be  held  responsible  for 
the  misunderstanchng  of  the  witnesses,  as  he  might,  if  they  were 
permitted  to  testify  as  to  the  import  of  his  words.  2  Phil.  Evi- 
dence, 97.  .  .  .  The  judgment  will  he  affirmed.} 

[3  &  4  William  IV.,  Chapter  42,  Section  23,  (1S33).] 

"  And  whereas  great  Expence  is  often  incurred,  and  Delay  oi 
Failure  of  Justice  takes  place,  at  Trials,  by  reason  of  Variances  as 
to  some  Particular  or  Particulars  between  the  Proof  and  the  Record 
or  setting  forth,  on  the  Record  or  Document  on  W'hich  the  Trial  is 
had,  of  Contracts,  Customs,  Prescriptions,  Names,  and  other 
Matters  or  Circumstances  not  material  to  the  Merits  of  the  Case, 
and  by  the  Mis-statement  of  which  the  opposite  Party  cannot  have 
been  prejudiced,  and  the  same  cannot  in  any  Case  be  amended  at 
the  Trial,  except  where  the  Variance  is  between  any  Matter  in 
Writing  or  in  Print  produced  in  Evidence  and  the  Record :  ^  And 
whereas  it  is  expedient  to  allow  such  Amendments  as  herein-after 
mentioned  to  be  made  on  the  Trial  of  the  Cause;  "  be  it  therefore 
enacted,  That  it  shall  be  lawful  for  any  Court  of  Record,  holding 
Plea  in  Civil  Actions,  and  any  Judge  sitting  at  Nisi  Prius,  if  such 
Court  or  Judge  shall  see  fit  so  to  do,  to  cause  the  Record,  Writ,  or 
Document  on  which  any  Trial  may  be  pending  before  any  such 
Court  or  Judge,  in  any  Civil  Action,  or  in  any  Information  in  the 
Nature  of  a  Quo  icarranto,  or  Proceedings  on  a  Mandamus,  when 
any  Variance  shall  appear  between  the  Proof  and  the  Recital  or 
setting  forth,  on  the  Record,  Writ,  or  Document  on  which  the 
Trial  is  proceeding,  of  any  Contract,  Custom,  Prescription,  Name, 
or  other  Matter,  in  any  Particular  or  Particulars  in  the  Judgment 
of  such  Court  or  Judge  not  material  to  the  Merits  of  the  Case,  and 
by  which  the  opposite  Party  cannot  have  been  prejudiced  in  the 
Conduct  of  his  Action,  Prosecution,  or  Defence,  to  be  forthwith 
amended  by  some  Officer  of  the  Court  or  otherwise,  both  in  the  Part 
of  the  Pleadings  where  such  Variance  occurs,  and  in  every  other 
Part  of  the  Pleadings  which  it  may  become  necessary  to  amend,  on 
such  Terms  as  to  Payment  of  Costs  to  the  other  Party,  or  postpon- 

1  See  Stephen,  Pleading,  Williston's  ed.,  p.  *93;  Tidd,  New  Practice,  p.  512; 
Thompson,  Trials,  2d  ed.,  sees.  2251-2262.  —  Ed. 

2  See  Stat.  9  Geo.  IV.  c.  15.  —  Ed. 


322  TRIAL 

ing  the  Trial  to  be  had  before  the  same  or  another  Jury,  or  both 
Payment  of  Costs  and  Postponement,  as  such  Court  or  Judge  shall 
think  reasonable;  and  in  case  such  Variance  shall  be  in  some  Par- 
ticular or  Particulars  in  the  Judgment  of  such  Court  or  Judge  not 
material  to  the  Merits  of  the  Case,  but  such  as  that  the  opposite 
Party  may  have  been  prejudiced  thereby  in  the  Conduct  of  his 
Action,  Prosecution,  or  Defence,  then  such  Court  or  Judge  shall 
have  Power  to  cause  the  same  to  be  amended  upon  Payment  of 
Costs  to  the  other  Party,  and  withdrawing  the  Record  or  postpon- 
ing the  Trial  as  aforesaid,  as  such  Court  or  Judge  shall  think  rea- 
sonable; and  after  any  such  Amendment  the  Trial  shall  proceed, 
in  case  the  same  shall  be  proceeded  with,  in  the  same  Manner  in  all 
respects,  both  with  respect  to  the  Liability  of  Witnesses  to  be  in- 
dicted for  Perjury,  and  otherwise,  as  if  no  such  Variance  had  ap- 
peared; and  in  case  such  Trial  shall  be  had  at  Nisi  Prius  or  by 
virtue  of  such  Writ  as  aforesaid,  the  Order  for  the  Amendment  shall 
be  indorsed  on  the  Postea  or  the  Writ,  as  the  Case  may  be,  and 
returned  together  with  the  Record  or  Writ,  and  thereupon  such 
Papers,  Rolls,  and  other  Records  of  the  Court  from  which  such 
Records  or  Writ  issued,  as  it  may  be  necessary  to  amend,  shall  be 
amended  accordingly;  and  in  case  the  Trial  shall  be  had  in  any 
Court  of  Record,  then  the  Order  for  Amendment  shall  be  entered 
on  the  Roll  or  other  Document  upon  which  the  Trial  shall  be  had; 
provided  that  it  shall  be  lawful  for  any  Party  who  is  dissatisfied 
with  the  Decision  of  such  Judge  at  Nisi  Prius,  Sheriff,  or  other 
Officer,  respecting  his  Allowance  of  any  such  Amendment,  to  apply 
to  the  Court  from  which  such  Record  or  Writ  issued  for  a  new  Trial 
upon  that  Ground,  and  in  case  any  such  Court  shall  think  such 
Amendment  improper,  a  new  Trial  shall  be  granted  accordingly, 
on  such  Terms  as  the  Court  shall  think  fit,  or  the  Court  shall 
make  such  other  Order  as  to  them  may  seem  meet. 

[New  York  Code  of  Civil  Procedure.] 

Sec.  539.  A  variance,  between  an  allegation  in  a  pleading  and 
the  proof,  is  not  material,  unless  it  has  actually  misled  the  adverse 
party,  to  his  prejudice,  in  maintaining  his  action  or  defence,  upon 
the  merits.  If  a  party  insists  that  he  has  been  misled,  that  fact, 
and  the  particulars  in  which  he  has  been  misled,  must  be  proved 
to  the  satisfaction  of  the  court.  Thereupon  the  court  may,  in  its 
discretion,  order  the  pleading  to  be  amended,  upon  such  terms  as 
it  deems  just. 


EWING      V.    GOODE  323 

Sec.  540.  Where  the  variance  is  not  material,  as  prescribed  in 
the  last  section,  the  court  may  direct  the  fact  to  be  found  according 
to  the  evidence,  or  may  order  an  immediate  amendment,  without 
costs. 

Sec.  541.  Where,  however,  the  allegation  to  which  the  proof  is 
directed,  is  unproved,  not  in  some  particular  or  particulars  only, 
but  in  its  entire  scope  and  meaning,  it  is  not  a  case  of  variance, 
within  the  last  two  sections,  but  a  failure  of  proof. 


EWING  et  al.  v.  GOODE. 

Circuit  Court  of  the  United  States,   Southern  District 
OF  Ohio.     1897. 

[Reported  78  Federal  Reporter,  442.] 

Taft,  Circuit  Judge. ^  In  this  case  the  petition  of  Nellie  Ewing, 
the  plaintiff,  alleges  that  she  employed  the  defendant,  Goode,  a 
surgeon  and  oculist,  to  cure  her  of  a  certain  malady  of  her  eye,  for 
a  reward  to  be  paid  therefor;  that  defendant  entered  upon  such 
employment,  but  did  not  use  proper  care  and  skill  in  the  operating 
on  the  eye  of  plaintiff,  and  did  not  bestow  proper  attention  and 
treatment  upon  the  eye  after  the  operation,  causing  her  to  suffer 
great  pain,  and  to  lose  the  right  eye  entirely,  and  to  impair  the 
sight  of  her  left  eye.  The  answer  of  the  defendant  denies  unskil- 
fulness  or  lack  of  attention  on  his  part  and  any  injury  to  the 
plaintiff  caused  thereby.  .  .  . 

_Before  the  plaintiff  can  recover,  she  must  show  by  affirmative 
evidence -^first,  that  defendant  was  unskilful  or  negligent;  and, 
gecond,  thatjiis-want  of  skill  or  care  caused  injury  to  the  plaintiff. 
-Ifjeither  element  is  lacking  in  her  proof,  she  has  presented  no  case 
for  the  consideration  of  the  jury.  The  naked  facts  that  defendant 
performed  operations  upon  her  eye,  and  that  pain  followed,  and 
that  subsequently  the  eye  was  in  such  a  bad  condition  that  it  had 
to  be  extracted,  establish  neither  the  neglect  and  unskilfulness  of 
the  treatment,  nor  the  causal  connection  between  it  and  the  un- 
fortunate event.  A  physician  is  not  a  warrantor  of  cures.  If  the 
maxim,  "  Res  ipsa  loquitur,"  were  applicable  to  a  case  like  this,  and 
a  failure  to  cure  were  held  to  be  evidence,  however  slight,  of  negli- 
gence on  the  part  of  the  physician  or  surgeon  causing  the  bad  result, 
few  would  be  courageous  enough  to  practise  the  healing  art,  for 

1  A  part  of  the  opinion,  in  which  the  learned  judge  examined  the  evidence 
is  omitted.  —  En. 


324  TRIAL 

they  would  have  to  assume  financial  liability  for  nearly  all  the 
"  ills  that  flesh  is  heir  to." 

The  preliminary  question  for  the  court  to  settle  in  this  case, 
therefore,  is  whether  there  is  any  evidence  sufficient  in  law  to  sus- 
tain a  verdict  that  defendant  was  unskilful  or  negligent,  and  that 
his  want  of  skill  or  care  caused  injury.  Injthe  courts  of  this  and_ 
ilther  states^  the  rule  is  that  if  the  party  having  the  burden  of  proof 
offer  a  mere  scintilla  of  evidence  to  support  each  necessary^elemenL, 
of  his  case,  however  overwhelming  the  evidence  to  the  contraryj__ 

the  court  must  submit  the  issue  thus  made  to  the  jury,  with  the 

power  to  set  aside  the  verdict  if  found  against  the  weight  of  the 
evidence.  In  the  federal  courts  this  is  not  the  rule.  According 
to  their  practice,  if  the  party  having  the  burden  submits  only  a 
scintilla  of  evidence  to  sustain  it,  the  court,  instead  of  going 
through  the  useless  form  of  submitting  the  issue  to  the  jury,  and 
correcting  error,  if  made,  by  setting  aside  the  verdict,  may  in  the 
first  instance  direct  the  jury  to  return  a  verdict  for  the  defendant. 
Hence  our  inquiry  is:  Does  the  case  now  submitted  show  more^ 
than  a  scintilla  of  evidence  tending  to  show  want  of  skill  or  care^by 
defendant,  or  injury  caused  thereby  ?  Railway  Co.  v.  Lowery, 
20  C.  C.  A.  596,  74  Fed.  463.  .  .  . 

The  condition  of  the  plaintiff  cannot  but  awaken  the  sympathy 
of  every  one,  but  I  must  hold  that  there  is  no  evidence  before  the 
court  legally  sufficient  to  support  a  verdict  in  her  favor.  I  should 
deem  it  my  duty  without  hesitation  to  set  aside  a  verdict  for  the 
plaintiff  in  this  case  as  often  as  it  could  be  rendered,  and,  that  being 
true,  it  becomes  my  duty  to  direct  a  verdict  for  the  defendant.^ 


McDonald,  as  administratrix,  v.  THE  METROPOLITAN 
STREET  RAILWAY  COMPANY. 

Court  of  Appeals  of  New  York.     1901. 

[Reported  1G7  Ncio  York,  66.] 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Su- 
preme Court  in  the  first  judicial  department,  entered  January  19, 
1900,  upon  an  order  affirming  a  judgment  in  favor  of  defendant 

1  See  Ryder  v.  Wombwell,  L.  R.  4  Exch.  32;  Hiddle  v.  National  Fire,  etc., 
Co.,  [1896]  A.  C.  372;  Comniissioners  of  Marion  County  v.  Clark,  94  U.  S. 
278,  24  L.  ed.  59;  Ol'futt  v.  Columbian  E.xposition,  175  111.  472,  51  N.  E.  651; 
liillyer  v.  Dickinson,  154  Mass.  502,  28  N.  E.  905;  The()l)ald  v.  Shepard,  75 
N.  H.  52,  71  Atl.  2().  But  see  Whalcy  v.  Bartlctt,  42  S.  C.  454,  20  S.  E.  745.— Ed. 


Mcdonald  v.  metropolitan  street  r.  co.  325 

entered  upon  a  verdict  directed  by  the  court  and  an  order  denying 
a  motion  for  a  new  trial. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

Martin,  J.  This  action  was  for  personal  injuries  resulting  in 
the  death  of  the  plaintiff's  intestate,  and  was  based  upon  the  al- 
leged negligence  of  the  defendant.  An  appeal  was  allowed  to  this 
court  upon  the  ground  of  an  existing  conflict  in  the  decisions  of 
different  departments  of  the  Appellate  Division  as  to  when  a  ver- 
dict may  be  directed  where  there  is  an  issue  of  fact,  and  because  in 
this  case  an  erroneous  principle  was  asserted  which,  if  allowed  to 
pass  uncorrected,  would  be  likely  "  to  introduce  confusion  into  the 
body  of  the  law."  ScioHna  v.  Erie  Preserving  Co.,  151  N.  Y.  50. 
The  court  having  directed  a  verdict,  the  appellant  is  entitled  to  the 
most  favorable  inferences  deducible  from  the  evidence,  and  all  dis- 
puted facts  are  to  be  treated  as  established  in  her  favor.  Ladd 
V.  .Etna  Ins.  Co.,  147  N.  Y.  478,  482;  Higgins  v.  Eagleton,  155 
N.  Y.  466;  Ten  Eyck  v.  Whitbeck,  156  N.  Y.  341,  349;  Bank  of 
Monongahela  Valley  v.  Weston,  159  N.  Y.  201,  208. 

If  beUeved,  the  testimony  of  the  plaintiff's  witnesses  was  suffi- 
cient to  justify  the  jury  in  finding  the  defendant  negligent  and  the 
plaintiff's  intestate  free  from  contributory  negligence.  The  evi- 
dence of  the  defendant  was  in  many  respects  in  direct  conflict,  and 
if  credited  would  have  sustained  a  verdict  in  its  favor.  Whether 
the  defendant  was  negligent,  the  plaintiff's  intestate  free  from  con- 
tributory negligence,  and  the  amount  of  damages,  were  submitted 
to  the  ]\ivy.  It,  however,  having  agreed  upon  a  general  verdict 
and  failed  to  answer  the  questions  submitted,  the  trial  judge  with- 
drew them  and  directed  a  verdict  for  the  defendant.  Upon  the 
verdict  so  directed  a  judgment  was  entered.  Subsequently  an 
appeal  was  taken  to  the  Appellate  Division,  where  it  was  affirmed, 
and  the  plaintiff  has  now  appealed  to  this  court. 

Although  there  was  a  direct  and  somewhat  severe  conflict  in  the 
evidence,  the  questions  of  negligence  and  contributory  negligence 
were  clearly  of  fact,  and  were  for  the  jury  and  not  for  the  court 
unless  the  right  of  trial  by  jury  is  to  be  partially  if  not  wholly 
_g,bolished.  It  was  assumed  below  that  the  plaintiff's  evidence 
established  a  case  which,  undisputed,  was  sufl^cient  to  warrant  a 
ver(Hct  in  her  favor.  But  the  court  said  that  at  the  close  of  the 
defendant's  evidence  the  plaintiff's  case  had  been  so  far  overcome 
that  a  verdict  in  her  favor  would  have  been  set  aside  as  against  the 
weight  of  evidence.     Upon  that  alleged  condition  of  the  proof,  it 


326  TRIAL 

held  that  the  trial  court  might  have  properly  submitted  the  case  to 
the  jury  if  it  saw  fit,  but  that  it  was  not  required  to  as  the  verdict 
might  have  been  thus  set  aside.  The  practical  result  of  that  de- 
cision, if  sustained,  is  in  every  close  case  to  vest  in  the  trial  court 
authority  to  determine  questions  of  fact,  although  the  parties  have 
a  right  to  a  jury  trial,  if  it  thinks  that  the  weight  of  evidence  is  in 
favor  of  one  and  it  directs  a  verdict  in  his  favor. 

There  have  been  statements  by  courts  which  seem  to  lend  some 
justification  to  that  theory,  but  we  think  no  such  broad  principle 
has  been  intended  and  that  no  such  rule  can  be  maintained  either 
upon  principle  or  authority.  The  rule  that  a  verdict  may  be 
directed  whenever  the  proof  is  such  that  a  decision  to  the  contrary 
might  be  set  aside  as  against  the  weight  of  evidence  would  be  both 
uncertain  and  delusive.  There  is  no  standard  by  which  to  deter- 
mine when  a  verdict  may  be  thus  set  aside.  It  depends  upon  the 
discretion  of  the  court.  The  result  of  setting  aside  a  verdict  and 
the  result  of  directing  one  are  widely  different  and  should  not  be 
controlled  by  the  same  conditions  or  circumstances.  In  one  case 
there  is  a  re-trial.  In  the  other  the  judgment  is  final.  Onejests 
in  discretion;  the  other  upon  legal  right.  One  involves  a  mere 
matter  of  remedy  or  procedure.  The  other  determines  substan- 
tive and  substantial  rights.  Such  a  rule  would  have  no  just  prin- 
ciple upon  which  to  rest. 

While  in  many  cases,  even  where  the  evidence  is  sufficient  to 
sustain  it,  a  verdict  may  be  properly  set  aside  and  a  new  trial 
ordered,  yet,  that  in  every  such  case  the  trial  court  may,  whenever 
it  sees  fit,  direct  a  verdict  and  thus  forever  conclude  the  parties,  has 
no  basis  in  the  law,  which  confides  to  juries  and  not  to  courts  the 
determination  of  the  facts  in  this  class  of  cases. 

We  think  it  cannot  be  correctly  said  in  any  case  where  the  right 
of  trial  by  jury  exists  and  the  evidence  presents  an  actual  issue  of 
fact,  that  the  court  may  properly  direct  a  verdict.  So  long  as  a 
question  of  fact  exists,  it  is  for  the  jury  and  not  for  the  court.  If 
the  evidence  is  insufficient,  or  if  that  which  has  been  introduced  is 
conclusively  answered,  so  that,  as  a  matter  of  law,  no  question  of 
credibility  or  issue  of  fact  remains,  then  the  question  being  one  of 
law,  it  is  the  duty  of  the  court  to  determine  it.  But  whenever  a 
plaintiff  has  established  facts  or  circumstances  which  would  justify 
a  finding  in  his  favor,  the  right  to  have  the  issue  of  fact  determined 
by  a  jury  continues,  and  the  case  must  ultimately  be  submitted  to  it. 

The  credibility  of  witnesses,  the  effect  and  weight  of  conflicting 
and  contradictory  testimony,  are  all  questions  of  fact  and  not  ques- 


Mcdonald  v.  metropolitan  street  r.  co.  327 

tions  of  law.  If  a  court  of  review  having  power  to  examine  the 
facts  is  dissatisfied  with  a  verdict  because  against  the  weight  or 
preponderance  of  evidence,  it  may  be  set  aside,  but  a  new  trial 
must  be  granted  before  another  jury  so  that  the  issue  of  fact  may 
be  ultimately  determined  by  the  tribunal  to  which  those  questions 
are  confided.  If  there  is  no  evidence  to  sustain  an  opposite  verdict, 
a  trjal  court  is  justified  in  chrecting  one,  not  because  it  would  have 
authority  to  set  aside  an  opposite  one,  but  because  there  was  an 
actual  defect  of  proof,  and,  hence,  as  a  matter  of  law,  the  party  was 
not  entitled  to  recover.  Colt  v.  Sixth  Ave.  R.  R.  Co.,  49  N.  Y. 
671;  Bagley  v,  Bowe,  105  N.  Y.  171,  179. 

We  have  recently  considered  the  question  involved  in  the  case 
at  bar,  have  practically  reaffirmed  the  doctrine  of  the  foregoing 
cases,  and  have  reviewed  the  cases  upon  which  the  court  below 
seems  to  have  based  its  decision.     Fealey  v.  Bull,  163  N.  Y.  397. 

The  learned  judge  who  delivered  the  opinion  in  that  case  plainly 
demonstrated  that  the  doctrine  enunciated  by  the  court  below  has 
no  actual  support  in  Linkauf  v.  Lombard  (137  N.  Y.  417)  and 
Hemmens  v.  Nelson  (138  N.  Y.  517).  He  shows  that  in  those  cases 
there  was  no  sufficient  evidence  to  sustain  the  verdicts,  and  that 
if  there  had  been  this  court  would  have  had  no  jurisdiction  to  re- 
verse. His  examination  further  discloses  that  the  reversal  in  the 
Linkauf  case  was  upon  the  ground  that  the  proof  amounted  at  most 
to  a  mere  surmise,  and  that  in  the  Hemmens  case  the  principle  that 
if  there  is  any  evidence  upon  a  question  of  fact  it  should  be  sub- 
mitted to  the  jury,  was  asserted.  The  clearness  and  ability  with 
which  the  question  was  discussed  by  him  render  it  unnecessary  to 
further  consider  it  at  this  time. 

We  are  of  the  opinion  that  a  plain  issue  of  fact  was  presented  for 
the  jury;  that  the  court  erred  in  directing  a  verdict;  that  the  judg- 
ment and  order  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 

Parker,  Ch.  J.,  Bartlett,  Vann,  Cullen  and  Werner,  JJ., 
concur;  Gray,  J.,  dissents.  Judgment  reversed,  etc} 

1  See  Jewell  v.  Parr,  13  C.  B.  909;  Dublin,  etc.,  Ry.  Co.  v.  Slattery,  3  A.  C. 
1155,  Denny  v.  Williams,  5  Allen  (Mass.),  1;  Crosby  v.  Wells,  73  X.  J.  L.  790, 
67  Atl.  295. 

In  Donovan ;;.  Connecticut  Co.,  86  Conn.  82,  84  Atl.  288,  the  court,  Wheeler, 
J.,  said  (p.  86) : 

"All  courts  agree  that  the  trier  —  judge  or  jury  —  may  infer  facts  from 
those  already  found,  upon  which  its  ultimate  conclusion  may  rest  in  whole  or 
part.  Bunnell  v.  Berlin  Iron  Bridge  Co.,  66  Conn.  24,  36,  33  Atl.  533;  C.  &  C. 
Electric  Motor  Co.  v.  D.  Frisbie  &  Co.,  66  Conn.  67,  78,  33  Atl.  604;   Doyle  v. 


328 


TRIAL 


SPEAR  V.   HAGGARTY. 
Appellate  Court  of  Illinois,  First  District.     1911. 

[Reported  163  Illinois  Appellate  Court  Reports,  27.] 


Clark,  J.  Recovery  was  had  for  $83,  being  rent  for  an  apart- 
ment for  two  months  and  part  of  a  third. 

The  only  defense  interposed  was  that  the  apartment  had  not 
been  renovated  as  required  by  the  terms  of  the  lease. 

The  trial  was  had  before  the  court  and  a  jury,  the  court,  however, 
directing  the  jury  to  find  a  verdict  for  the  plaintiff. 

Boston  &  A.  R.  Co.,  145  Mass.  386,  14  N.  E.  461.  And  the  jury  may  make  all 
inferences  and  conclusions  which,  in  their  judgment  and  discretion,  may 
logically  and  reasonably  be  drawn  from  the  facts  in  evidence.  North  Chicago 
Street  R.  Co.  v.  Rodert,  203  111.  413,  67  N.  E.  812;  Columbus  v.  Strassner, 
138  Ind.  301,  34  N.  E.  5,  37  id.  719;  Gavett  v.  Manchester  &  L.  R.  Co.,  16 
Gray  (Mass.),  501,  506. 

"  The  test  is,  not  that  the  inference  must  unavoidably  and  unerringly  point 
in  one  direction,  but  rather,  whether  the  rational  mind  could  with  reasonable- 
ness draw  the  inference.  Hanrahan  ;;.  Baltimore  City,  114  Md.  517,  535,  79 
Atl.  197;   M'Elderry  v.  Flannagan,  1  Harris  &  G.  (Md.),  308. 

If  two  rational  minds  could  reasonably  draw  different  inferences  from  facts 
in  evidence,  whether  controverted  or  uncontroverted,  the  decision  is  for  the 
jury.  Mumma  v.  Easton  &  A.  R.  Co.,  73  N.  J.  L.  653,  658,  65  Atl.  208; 
Harvel  v.  Weldon  Lumber  Co.,  154  N.  C.  254,  262,  70  S.  E.  389;  Central 
Coal  &  Iron  Co.  v.  Owens,  142  Ky.  19,  21,  133  S.  W.  966;  Powers  v.  St.  Louis 
Transit  Co.,  202  Mo.  267,  100  S.  W.  655;  Miller  v.  Sovereign  Camp,  140  Wis. 
505,  507,  122  N.  W.  1126;  Galvin  v.  Brown  &  McCabe,  53  Ore.  598,  101  Pac. 
671;  Henry  v.  Omaha  Packing  Co.,  81  Neb.  237,  115  N.  W.  777. 

"  In  the  first  instance,  the  court  determines  whether  there  is  any  evidence 
having  a  logical  and  reasonable  tendency  to  prove  the  fact,  or  the  inference  in 
dispute.  If  not,  it  should  not  submit  the  question  to  the  jury.  Theobald  v. 
Shepard,  75  N.  H.  52,  55,  71  Atl.  26;  Gavett  v.  Manchester  &  L.  R.  Co.,  16 
Gray  (Mass.),  501.  On  the  other  hand,  if  reasonable  men  might  find  the  fact 
or  draw  the  inference,  the  court  must  leave  the  determination  to  the  jury. 

"  The  court  will  judge  the  reasonableness  of  the  inference  claimed  in  the  light 
of  the  evidence  as  weighed  by  its  experience  and  knowledge  of  events,  and  if  its 
conclusion  be  that  there  is  no  probability  or  presumption  that  would  lead  to 
this  inference,  it  will  exclude  its  consideration  from  the  jury;  if  it  conclude  that 
there  is  such  a  probability  or  presumption,  or  that  reasonable  men,  reasoning 
logically,  might  reach  several  conclusions,  of  which  the  one  claimed  was  one, 
it  will  leave  its  finding  and  consideration  to  the  jury.  Doyle  v.  Boston  &  A.  R. 
Co.,  145  Mass.  386,  388,  14  N.  E.  461." 

And  see  Ketterman  v.  Dry  Fork  R.  R.  Co.,  48  W.  Va.  606,  37  S.  E.  683. 

Professor  Wigmore  suggests  as  a  test,  "  whether  the  proponent's  evidence  is 
so  slight  that  a  favorable  verdict  based  upon  that  evidence  alone  would  appear 
incomprehensible  as  a  matter  of  reasoning."  Pocket  Code  of  Evidence,  sec. 
2002;  and  see  4  Wigmore,  Evidence,  sec.  2494.  —  Ed. 


WRIGHT   V.    SOUTHERN    RAILWAY    COMPANY  329 

No  question  of  law  is  involved.  We  have  examined  the  record 
and  find  nothing  in  it  to  justify  the  claim  of  the  defendant  that 
the  clause  of  the  lease  which  provided  that  the  flat  should  be 
thoroughly  renovated  had  not  been  compUed  with.       Affirmed} 

WRIGHT  V.  SOUTHERN  RAILWAY  COMPANY. 

Supreme  Court  of  North  Carolina.     1911. 

[Reported  155  North  Carolina,  325.] 

This  is  an  action  to  recover  damages  for  personal  injury, 
on  the  ground  of  negligence.  .  .  .  There  was  a  judgment  of  non- 
suit, from  which  the  plaintiff  appealed.^ 

Allen,  J.  It  is  true,  as  contended  by  the  learned  counsel  for 
the  plaintiff,  that  the  defendant  must  plead  contributory  negli- 
gence, and  that  the  plea  is  not  good  when  it  does  no  more  than  deny 
the  negligence  of  the  defendant  and  allege  that  the  plaintiff  was 
injured  by  his  own  negligence.  Revisal,  sec.  483;  Cogdell  y.  R.  R., 
132  N.  C.  855. 

The  defendant,  as  appears  from  the  answer,  has  done  more  than 
this,  and  we  think  it  is  entitled  to  avail  itself  of  the  defense.  It 
has  alleged  that  the  plaintiff  entered  upon  the  track  of  the  defend- 
ant without  looking  and  listening,  and  that  he  recklessly  attempted 
to  cross  the  track  in  front  of  an  approaching  train. 

We  also  concur  in  the  interesting  and  able  discussion  of  the  rela- 
tive functions  of  the  judge  and  jury,  and  of  the  importance  of  pre- 
venting encroachment  by  one  on  the  powers  of  the  other,  but  we 
must  recognize  the  principle,  firmly  established,  that  the  judge 
must  decide,  as  matter  of  law,  the  preUminary  question  whether 
there  is  any  legal  evidence  to  be  submitted  to  the  jury. 

In  the  determination  of  this  question,  caution  should  be  observed 
and  the  construction  of  the  evidence  most  favorable  to  the  plaintiff 
should  be  adopted. 

Considering  the  evidence  in  this  light,  we  must  sustain  the  ruling 
of  the  judge,  as  it  appears  clear  to  us  that  the  plaintiff  was  guilty  of 
contributory  negligence  on  his  own  evidence. 

There  was  much  controversy  at  one  time  as  to  the  right  of  the 
defendant  to  avail  itself  of  the  plea  of  contributory  negligence  on  a 
motion  to  nonsuit,  but  it  is  now  the  accepted  doctrine  with  us  that 

1  See  Brown  v.  Drake,  109  Ga.  179,  34  S.  E.  309;  Angus  v.  Chicago  Trust  & 
Savings  Bank,  170  111.  298,  48  N.  E.  946.  —  Ed. 

*  A  part  of  the  statement  of  facts  in  which  the  evidence  is  set  out  in  detail  is 
omitted.  —  Ed. 


330  TRIAL 

it  can  do  so  if  it  is  disclosed  by  the  evidence  of  the  plaintiff.  If  the 
plaintiff  entered  on  the  track  without  looking  and  listening,  or  if 
he  looked  and  listened  and  attempted  to  drive  in  front  of  the  train, 
in  either  case  he  would  be  guilty  of  contributory  negligence. 

He  says  that  when  he  was  sixteen  or  seventeen  feet  from  the 
track,  Hall,  who  was  in  the  buggy  with  him,  told  him  he  heard 
another  train,  and  jumped  out  and  told  him  to  whip  up  or  he  would 
be  caught;  that  he  turned  and  saw  the  train,  two  or  three  rail 
lengths  from  him,  and  that  he  whipped  his  mare  to  force  him 
across. 

It  is  true  he  was  not  injured  on  the  crossing,  but  he  would  not 
have  been  injured  at  all  if  he  had  not  negligently  placed  himself 
in  a  position  of  danger. 

The  citation  of  authority  is  needless,  as  there  is  no  controversy 
between  the  plaintiff  and  the  defendant  as  to  what  the  law  is,  but 
as  to  its  application.  Affirmed} 

CLARK  V.  OREGON  SHORT  LINE  RAILROAD  COMPANY, 

a  Corporation. 

Supreme  Court  of  Utah.     1899. 
[Reported  20  Utah,  401.] 

Baskin,  J.^  This  is  an  action  in  which  the  plaintiff,  who  is  the 
respondent,  seeks  to  recover  the  value  of  a  cow  alleged  to  have  been 
killed  through  the  negligence  of  the  appellant  in  running  one  of  its 
freight  trains.  Tho  answer  denied  the  negligence  of  the  appellant 
alleged  by  plaintiff.  Contributory  negligence  on  the  part  of  the 
plaintiff  was  not  plead  in  the  answer. 

At  the  close  of  the  testimony  the  appellant  requested  the  trial 
court  to  instruct  the  jury  to  return  a  verdict  in  favor  of  defendant, 
of  no  cause  of  action.  This  request  was  denied,  and  the  jury  re- 
turned a  verdict  in  favor  of  plaintiff  for  S50.00. 

The  only  error  assigned  and  urged  l)y  appellant  is,  that  said  re- 
quest was  improperly  refused. 

1  See  Neal  v.  Carolina  C.  R.  R.  Co.,  126  N.  C.  634,  36  S.  E.  117,  49  L.  R.  A. 
684.  But  see  Whaley  v.  Bartlett,  42  S.  C.  454,  20  S.  E.  745.  Compare 
American  Exch.  Nat.  Bank  v.  N.  Y.  B.  &  P.  Co.,  148  N.Y.  698,  43  N.  E.  168. 

A  nonsuit  should  not  be  granted  nor  a  verdict  directed  for  tlie  defendant 
where  the  plaintiff's  evidence  merely  tends  to  disclose  a  defense.  Baker  v. 
K.  C,  F.  S.  &  M.  R.  R.  Co.,  122  Mo.  533,  26  S.  W.  20;  Rhyner  v.  City  of 
Menasha,  97  Wis.  523,  73  N.  W.  41.  —  Ed. 

2  The  statement  of  fact.5  and  a  part  of  the  opinion  in  which  the  evidence  is 
considered  in  detail  are  omitted.  —  Ed. 


LONZER    V.    LEHIGH    VALLEY    RAILROAD    COMPANY  331 

It  is  well  settled  that  the  court  may  withdraw  the  case  from  the 
jury  altogether,  and  direct  a  verdict  for  the  plaintiff  or  defendant, 
as  the  one  or  the  other  may  be  proper,  where  the  evidence  is  undis- 
puted, or  is  of  such  conclusive  character  that  the  court,  in  the  exer- 
cise of  a  sound  judicial  discretion,  would  be  compelled  to  set  aside 
a  verdict  in  opposition  to  it.  Pool  v.  Southern  Pac.  Co.,  20  Utah, 
210,  58  Pac.  330,  and  cases  cited. 

In  the  case  of  Bunnell  v.  Railway  Co.,  13  Utah,  314-323,  it  is 
held  that,  "  Generally,  contributory  negligence,  is  a  matter  of 
defense,  and  must  be  alleged  and  proven  by  the  defendant;  but 
where  the  testimony  on  the  part  of  the  plaintiff,  who  seeks  to  re- 
cover damages  for  injuries  resulting  from  negligence,  shows  con- 
clusively that  his  own  negligence  or  want  of  ordinary  care  was  the 
proximate  cause  of  the  injury,  he  will  not  be  permitted  to  recover, 
even  though  the  answer  contains  no  averment  of  contributory 
negligence." 

It  follows  from  the  foregoing  rules,  which  are  well  established, 
that  if  the  evidence  in  this  case  clearly  shows  that  the  plaintiff  was 
guilty  of  negligence,  which  materially  contributed  to  the  proximate 
cause  of  the  injury  complained  of,  then  the  trial  court  erred  in  re- 
fusing to  instruct  the  jury  as  requested  by  defendant.  .  .  . 

Under  the  ruling  in  Bunnell  v.  Railway  Co.,  we  are  of  the  opinion 
that  the  evidence  clearly  shows  that  the  plaintiff  was  guilty  of  negli- 
gence which  materially  contributed  to  the  kiUing  of  his  cow. 

The  judgment  of  the  court  below  is  reversed,  with  directions  to 
grant  a  new  trial,  and  it  is  ordered  that  respondent  pay  the  costs. ^ 

Bartch,  C.  J.,  and  Miner,  J.,  concur. 

LONZER    V.    LEHIGH    VALLEY    RAILROAD    COMPANY. 
Supreme  Court  of  Pennsylvanl\.     1900. 

[Reported  196  Pennsijlvania  State,  610.] 

Trespass  for  the  death  of  plaintiff's  husband.  Before 
Edwards,  J. 

At  the  trial  it  appeared  that  Michael  Lonzer,  plamtiff 's  husband, 
was  killed  on  January  20,  1896,  while  working  as  a  locomotive 
engineer  on  one  of  defendant's  trains.  The  accident  occurred 
near  Hazelton,  and  was  caused  by  a  subsidence  of  the  track. 

»  Chaney  v.  L.  &  M.  R.  R.  R.  Co.,  176  Mo.  598,  75  S.  W.  595,  accord. 

But  a  nonsuit  should  not  be  granted  nor  a  verdict  directed  for  the  defendant 
where  the  plaintiff's  evidence  merely  tends  to  disclo.se  a  defense.  Holland  v. 
Oregon  Short  Line  R.  R.  Co.,  20  Utah,  209,  72  Pac.  940.  —  Ed. 


332  TRIAL 

This  subsidence  was  due  to  the  sinking  of  the  land  over  mine 
workings  from  which  the  coal  had  been  removed.  Plaintiff  was 
running  his  train  at  the  time  of  the  accident  at  the  rate  of  about 
twenty-five  miles  an  hour.  There  was  evidence  that  three  weeks 
prior  to  the  accident  a  notice  had  been  placed  on  the  assistant 
train  master's  bulletin  board  that,  "  All  trains  will  run  slow  be- 
tween Sugar  Loaf  Switch  and  South  Sugar  Loaf,  account  track 
settling."  There  was  evidence  that  rumiing  slow  meant  eight  to 
ten  miles  an  hour.  Deceased's  fireman  testified  that  Lonzer  had 
a  copy  of  the  order  in  his  possession,  and  had  showed  it  to  the 
witness.     The  court  submitted  the  case  to  the  jury. 

Verdict  and  judgment  for  plaintiff  for  $3,000.  Defendant 
appealed. 

Error  assigned  was  in  submitting  the  case  to  the  jury. 

Mitchell,  J.  The  plaintiff's  husband  was  engineer  of  a  train 
which  was  derailed  by  a  subsidence  of  the  track,  and  he  was  killed. 
The  defense  was  his  own  contributory  negligence. 

It  appeared  by  the  undisputed  evidence  that  the  track  was  laid 
for  a  considerable  distance  over  mine  workings  from  which  the  coal 
had  been  removed;  that  from  time  to  time  prior  to  the  accident 
there  had  been  cavings  in  of  the  surface  along  the  railroad's  right 
of  way;  that  the  road  was  known  to  be  in  an  unsafe  condition  from 
this  tendency,  and  that  the  accident  resulting  in  deceased's  death 
arose  from  this  cause.  On  the  argument  several  points  were  made 
by  appellant  in  regard  to  deceased's  contributory  negligence,  but 
we  do  not  find  it  necessary  to  notice  any  but  one. 

The  recognition  of  the  dangerous  condition  of  the  track  was  such 
that  the  company  had  begun  a  change  of  location,  and  pentUng  the 
completion  of  the  work  had  posted  a  notice  on  the  bulletin  board 
of  the  assistant  train  master's  office  for  nearly  three  weeks  before 
the  accident  that  "  All  trains  will  run  slow  between  Sugar  Loaf 
S\\itch  and  South  Sugar  Loaf,  account  track  setthng."  It  was  the 
duty  of  deceased  to  examine  this  bulletin  board  before  starting  and 
at  the  end  of  each  run,  that  is,  six  times  every  day  that  the  notice 
was  up,  and  the  inference  is  irresistible  that  he  must  have  seen  it. 
But  beyond  this  there  is  the  positive  testimony  of  the  fireman  that 
the  deceased  had  a  copy  of  the  order  which  he  showed  to  witness. 
There  was  further  evidence  that  running  slow  meant  eight  to  ten 
miles  an  hour,  and  that  at  that  speed  the  accident  would  not  have 
happened,  or  at  most  would  not  have  had  any  serious  results. 

It  is  true  that  an  effort  was  made  by  plaintiff  to  show  that  the 
notice  was  not  posted  until  after  the  accident,  but  the  evidence 


LONZER  V.    LEHIGH   VALLEY    RAILROAD    COMPANY  333 

could  hardly  be  said  to  amount  to  a  scintilla.  A  single  witness, 
the  engineer  of  a  shifting  engine,  was  called  to  this  point  in  rebuttal, 
but  his  testimony  cannot  fairly  be  said  to  go  further  than  that  he 
did  not  see  the  notice  until  after  the  accident. 

It  is  further  said  that  the  testimony  as  to  the  posting  of  the  no- 
tice and  the  deceased's  knowledge  of  it  was  by  witnesses  for  the 
defense  and  their  credibility  was  for  the  jury.  Such  certainly  is 
the  general  rule.  The  jury  are  not  bound  to  believe  every  story 
that  a  witness  or  witnesses  are  willing  to  swear  to  simply  because 
no  other  witness  contradicts  it.  If  its  inherent  improbability  or 
irreconcilability  with  facts  shown  or  admitted  are  such  that  it  does 
not  command  their  assent,  the  jury  may  disregard  it.  But  this 
rule  is  founded  on  common  sense  and  knowledge  of  human  nature, 
and  must  be  limited  by  the  same  standards.  When  the  testimony 
is  not  in  itself  improbable,  is  not  at  variance  with  any  proved  or 
admitted  facts,  or  with  ordinary  experience,  and  comes  from  wit- 
nesses whose  candor  there  is  no  apparent  ground  for  doubting,  the 
jury  is  not  at  liberty  to  indulge  in  a  capricious  disbelief.  If  they 
do  so,  it  is  the  duty  of  the  court  to  set  the  verdict  aside.  Such 
cases  are  exceptional,  but  this  is  one  of  them.  The  fact  that  the 
notice  was  there  for  three  weeks  in  a  place  where  it  was  the  daily 
duty  of  the  deceased  to  look,  was  not  denied  except  inferentially 
by  one  witness;  the  coemployees  of  the  deceased  saw  it,  and  when 
the  fireman  testified  that  the  deceased  had  shown  him  a  copy  of  it, 
he  merely  added  positive  testimony  to  what  was  already  an  irre- 
sistible inference  from  facts  previously  proved.  The  verdict 
should  have  been  set  aside  as  in  direct  disregard  of  the  evidence, 
and  where  that  is  the  case,  the  court  may  refuse  to  submit  it  at  all 
and  direct  a  verdict  according!}':  Holland  v.  Kindregan,  155  Pa.  156. 

On  a  review  of  the  whole  evidence  the  facts  are  practically  un- 
disputed and  from  them  it  clearly  appears  that  Lonzcr's  death  was 
the  direct  and  proximate  result  of  his  voluntary  disregard  of  an 
order  of  the  appellant  made  specially  to  avoid  the  very  danger 
from  which  the  accident  resulted.  Under  such  circumstances 
there  could  be  no  recovery  by  him  or  by  anybody  claiming  through 
him.  Judgment  reversed.^ 

»  Compare  Union  Pacific  lly.  Co.  t'.  McDonald,  152  U.  S.  262,  38  L.  ed. 
434,  14  S.  Ct.  619;  Tedder  v.  Fraleigh-Lines-Smith  Co.,  55  Fla.  496,  46  So.  419; 
Marshall  v.  Grosse  Clothing  Co.,  184  111.  421,  56  N.  E.  807;  Wellington  v. 
Corinna,  104  Me.  252,  71  Atl.  889,  holding  that  a  verdict  may  be  directed  for 
the  plaintiff  although  the  defendant  has  interposed  a  negative  plea.  But  see 
Commonwealth  r.  McNeos",  156  Mass.  231,  30  N.  E.  1021;  Perkiomen  R.  R. 
Co.  I'.  Kremor,  218  Pa.  641,  67  Atl.  913.  —  Ed. 


334  TRIAL 

SHARE  V.   COATS. 

Supreme  Court  of  South  Dakota.     1912. 

[Reported  29  South  Dakota,  603.] 

Smith,  J.  ...  At  the  close  of  plaintiff's  evidence,  defendant 
moved  for  direction  of  a  verdict,  which  was  denied  and  exception 
taken.  Defendant  then  rested,  without  offering  any  evidence, 
and,  upon  plaintiff's  motion,  a  verdict  was  directed  for  plaintiff 
for  the  full  amount  of  commissions  claimed  on  both  sales,  to 
which  defendant  excepted.^  .   .   . 

The  record  shows  that  at  a  time  when  all  the  evidence  offered 
was  before  the  court  and  jury  each  party  presented  a  motion  for 
direction  of  a  verdict.  ^It  has  been  long  settled  in  this  state  that 
when  each  party,  at  the  close  of  all  the  evidence,  presents  a  motion 
for  direction  of  a  verdict  this,  in  effect,  is  a  submission  of  ques- 
tions, both  of  law  and  fact,  to  the  court.  Bower  v.  Jones,  26 
S.  D.  414,  128  N.  W.  470;  First  National  Bank  v.  North,  2  S.  D. 
480,  51  N.  W.  96;  Erickson  v.  Citizens'  Nat.  Bank,  9  N.  D.  81,  81 
N.  W.  46.  The  trial  court  has  power,  even  in  cases  where  a  jury 
trial  is  a  matter  of  legal  right,  to  direct  a  verdict,  when  requested 
by  both  parties.  People  v.  Scannell,  172  N.  Y.  316,  65  N.  E.  165. 
This  rule  is  unquestionably  sustained  by  the  weight  of  authority. 
38  Cyc.  1576  (c),  and  cases  cited.  Appellant's  contention  is  that 
defendant's  motion  for  direction  of  a  verdict  challenged  only  the 
legal  sufficiency  of  the  evidence  to  sustain  a  verdict  for  plaintiff, 
conceding  the  testimony  of  plaintiff's  interested  witness  to  be 
absolutely  true;  and  that  the  credibility  of  plaintiff's  testimony 
was  not  thereby  submitted  to  the  trial  court,  but  remained  a  ques- 
tion upon  which  defendant  was  entitled  to  a  verdict  of  the  jury. 
Appellant's  line  of  reasoning  has  been  adopted  in  states  whose 
courts  have  expressly  disapproved  the  New  York  rule.  Thompson 
V.  Brennan,  104  Wis.  564,  80  N.  W.  947;  National  Cash  Register 
Co.  V.  Bonneville,  119  Wis.  222,  96  N.  W.  558;  German  Saving 
Bank  v.  Bates,  111  Iowa,  432,  82  N.  W.  1005;  Wolf  v.  Chicago  Sign 
Printing  Co.,  233  111.  501,  84  N.  E.  614,  13  Ann.  Cas.  369;  Stauff 
V.  Bingenheimer,  94  Minn.  309,  102  N.  W.  694;  Poppitz  v.  German 
Ins.  Co.,  85  Minn.  118,  88  N.  W,  438;  Lonier  v.  Ann  Arbor  Savings 
Bank,  153  Mich.  253,  116  N.  W.  1086.  The  reasoning  of  these 
cases  as  stated  in  Stauff  v.  Bingenheimer,  supra,  is:  That  "  a  mo- 

1  A  part  of  the  opinion  is  omitted.  The  judgment  of  the  trial  couit  was 
reversed  for  error  in  regard  to  the  amount  of  the  verdict.  —  Ed. 


SHARE    V.    COATS  335 

tion  by  either  party  to  an  action  that  a  verdict  be  directed  in  his 
favor  cannot  be  construed  as  a  waiver  of  the  right  to  have  the  facts 
passed  upon  by  the  jury,  or  as  an  agreement  to  submit  them  to  the 
trial  judge,  in  case  the  motion  is  denied."  The  reasoning  upon 
which  the  New  York  rule  is  founded  is  that  parties  have  the  right 
to  waive  a  jury  trial;  and  that  motions  by  both  parties  for  direc- 
tion of  a  verdict  is  sufficient  evidence  of  an  intention  to  waive  that 
right.  The  latter  rule  has  been  too  long  acted  upon  and  settled  in 
this  state  to  warrant  the  adoption  of  the  rule  contended  for  by 
appellant. 

It  has  never  been  held  in  this  state,  however,  that  motions  by 
both  parties  constitute  a  conclusive  waiver  of  the  right  to  de- 
mand a  submission  to  the  jury  of  questions  of  fact  which  may 
properly  arise  upon  the  evidence,  where  the  contrary  intention  of 
the  parties  not  to  submit  questions  of  fact  to  the  court  may  be 
evidenced  by  a  seasonable  request  that  the  facts  be  submitted  to 
the  jury.  It  is  held  in  New  York  that  a  request  for  a  submission 
of  facts  to  the  jury,  where  the  evidence  is  of  such  character  as  to 
require  it,  may  be  made  at  any  time  Vjefore  a  directed  verdict  is 
returned  by  the  jury,  Eldredge  v.  Mathews,  93  App.  Div.  356, 
87  N.  Y.  Supp.  652;  Maxwell  v.  Martin,  130  App.  Div.  80,  114 
N.  Y.  Supp.  349;  Fuller  v.  Sehrenk,  58  App.  Div.  222,  68  N.  Y. 
Supp.  781,  affirmed  in  171  N.  Y.  671,  64  N.  E.  1126.  It  is  also 
held  that  a  request  for  submission  of  questions  of  fact  to  the  jury 
should  specifically  point  out  the  matters  it  is  desired  to  have  sub- 
mitted. Mayer  v.  Dean,  115  N.  Y.  556,  22  N.  E.  265,  5  L.  R.  A. 
540.  Such  a  request  will  not  be  granted  after  the  rendition  of  the 
directed  verdict.  Persons  v.  Hawkins,  41  App.  Div.  171,  58  N.  Y. 
Supp.  831;  Strohm  v.  Zoellner,  61  Misc.  Rep.  56,  112  N.  Y.  Supp. 
1063.  The  reason  for  the  rule  giving  parties  the  right  to  submit 
questions  of  fact  to  the  jury  upon  request,  after  an  adverse  ruling 
upon  a  motion  for  a  directed  verdict,  is  that  every  party  is  entitled 
to  present  to  the  court  such  legal  questions  as  he  thinks  arise  upon 
the  testimony,  without  the  penalty  of  losing  his  right  to  have  the 
jury  pass  upon  evidence  which  comes  from  interested  witnesses,  or 
is  of  such  character  that  honest  men  might  differ  in  the  conclusions 
to  be  drawn  therefrom.  Otherwise,  it  is  said,  it  would  never  be 
safe  to  ask  for  direction  of  a  verdict.  Switzer  v.  Norton,  3  App. 
Div.  173,  38  N.  Y.  Supp.  350.  It  is  apparent,  therefore,  that  a 
party,  desirous  of  preserving  his  right  to  have  the  jury  pass  upon 
the  evidence,  where  it  is  of  such  character  as  to  be  properly  sub- 
mitted to  a  jury,  may  preserve  that  right  by  a  reasonable  and 


336  TRIAL 

proper  request,  after  the  motions  for  directed  verdicts  have  been 
ruled  upon  by  the  court.  Such  request  would  ordinarily  be  a  con- 
clusive rebuttal  of  the  presumption  that,  by  motions  for  directed 
verdicts,  the  parties  intended  to  submit  questions  of  both  law  and 
fact  to  the  court.  Under  the  rule  adopted  by  this  court,  however, 
when  no  such  request  is  made,  the  presumption  that  parties  in- 
tended to  submit  to  the  court  all  questions,  both  of  law  and  fact, 
becomes  conclusive. 

An  exception  to  an  order  directing  a  verdict  presents  no  ques- 
tion for  review,  except  the  legal  sufficiency  of  the  evidence  to 
sustain  the  verdict  directed.  Questions  of  credibility  of  witnesses, 
and  of  inferences  to  be  drawn  from  evidence,  are  deemed  submitted 
to  the  court  by  motions  of  both  parties;  and  the  directed  verdict 
has  like  effect  as  does  a  verdict  returned  by  the  jury.  Sundhng  v. 
Willey,  19  S.  D.  293,  103  N.  W.  38,  9  Ann.  Cas.  644;  Farmen  v. 
U.  S.  Express  Co.,  25  S.  D.  96,  125  N.  W.  575.  In  the  case  at  bar, 
the  defendant  excepted  to  the  order  of  the  trial  court  directing  a 
verdict  for  plaintiff;  but  this  exception  presents  for  review  nothing 
except  the  legal  sufficiency  of  the  evidence  to  sustain  the  verdict, 
and  cannot  be  deemed  an  exception  to  a  denial  of  his  request  to  go 
to  the  jury  upon  the  evidence,  for  the  plain  reason  that  no  such 
request  was  made.  Ormes  v.  Dauchy,  82  N.  Y.  443,  37  Am.  Rep. 
583.1  .  ,  . 

GAGNON  V.   DANA  et  al. 
Supreme  Court  of  New  Hampshire.     1897. 

[Reported  69  New  Hampshire,  264.] 

Case,  for  personal  injuries  resulting  from  the  fall  of  a  staging 
at  the  Sacred  Heart  Hospital,  in  Manchester,  occasioned  by  the 
breaking  of  an  unsound  and  decayed  bracket.  Verdict  for  the 
plaintiff. 

The  plaintiff  is  a  carpenter  of  many  years'  experience  and  fully 
understood  all  the  duties  and  risks  incident  to  that  employment, 
one  of  which  is  the  putting  up  of  wall  brackets  to  support  the 
staging  on  which  he  is  to  work . 

1  See  also  Beuttell  v.  Magone,  157  U.  S.  154,  39  L.  ed.  654,  15  S.  Ct.  566; 
Empire  State  Cattle  Co.  v.  Atchison,  etc.,  Ry.  Co.,  210  U.  S.  1,  62  L.  ed.  931, 
28  S.  Ct.  607,  15  Ann.  Cas.  70;  Bankers'  Surety  Co.  v.  William  Miller  & 
Sons  Co.  (Ark.,  1912),  150  S.  W.  570;  People  v.  Scannell,  172  N.  Y.  316, 
65  N.  E.  165;  King  v.  Cox,  126  Tenn.  553,  151  S.  W.  58;  Fitzsimons  v.  Rich- 
ardson, Twigg  &  Co.,  86  Vt.  229,  84  Atl.  811.  —  Ed. 


GAGNON    V.    DANA  337 

The  work  on  the  hospital  was  being  done  by  one  Bradley,  the 
owner  of  the  property,  who  employed  one  Gay  to  superintend  the 
work,  hire  and  pay  the  men,  and  buy  the  materials.  In  the  per- 
formance of  these  duties.  Gay  went  to  the  defendants  and  engaged 
St.  Lawrence,  their  superintendent,  and  all  the  other  men  in  their 
employ,  one  of  whom  was  the  plaintiff,  under  an  arrangement  by 
which  the  defendants  were  to  receive  the  same  wages  the  men 
were  then  receiving,  and  twenty-five  cents  a  day  additional  for 
each  man  furnished  by  them;  and  the  men  went  to  work  on  the 
hospital  accordingly.  The  defendants  were  not  employed  on  the 
building  and  had  nothing  to  do  with  it  aside  from  the  letting  of 
their  men. 

By  Gay's  direction,  St.  Lawrence  acted  as  foreman  of  all  the 
men  on  the  job,  and  kept  their  time  and  reported  the  same  to 
Gay,  who  kept  the  pay-roll,  paid  the  men  directly  hired  by  him, 
and  also  paid  the  defendants  in  a  lump  sum  for  the  men  furnished 
by  them. 

Not  having  a  sufficient  number  of  wall  brackets  for  stagings. 
Gay  subsequently  borrowed  of  the  defendants  about  ninety  of 
their  brackets,  which  were  used  by  the  men  on  the  job.  These 
brackets  were  loaned  to  Gay  gratuitously  and  merely  as  an  ac- 
commodation to  him;  and  the  loan  had  nothing  to  do  with  the 
original  contract  of  hiring  the  defendants'  men. 

The  staging  on  which  the  accident  happened  was  built  by  the 
plaintiff  and  one  Dana,  a  fellow- workman.  It  was  about  four- 
teen feet  from  the  ground,  and  in  front  of  a  bay  window.  The 
brackets  were  placed  on  the  building  at  each  side  of  the  window, 
and  a  plank  about  a  foot  wide,  two  inches  thick,  and  fourteen  feet 
long,  made  the  staging.  The  plank  touched  the  window,  and  was 
on  the  outside  part  of  the  bracket  within  six  inches  of  the  end  of  it. 
While  Dana  and  the  plaintiff  were  on  the  plank,  one  of  the  brackets 
broke  at  a  point  just  outside  the  brace,  and  the  plaintiff  fell  to  the 
ground,  stunned  and  seriously  injured.  He  testified  that  the 
staging  looked  all  right. 

Several  witnesses  for  the  plaintiff  testified  that  they  heard  the 
defendant  Dana  say  soon  after  the  accident  that  he  knew  some 
of  the  brackets  were  old  and  unsound,  and  that  he  told  St.  Law- 
rence to  pick  them  out  and  not  to  use  them.  This  was  denied  by 
Dana  and  by  St.  Lawrence;  and  Dana  further  testified  that  he 
knew  of  no  unsoundness  in  the  brackets  when  they  were  loaned. 

At  the  close  of  the  plaintiff's  evidence,  a  motion  for  a  nonsuit 
was  denied,  subject  to  exception.     At  the  close  of  all  the  evidence, 


338  TRIAL 

the  motion  was  renewed  by  the  defendants,  who  also  moved  that  a 
verdict  be  directed  for  them.  The  motions  were  denied,  and  the 
defendants  excepted.  .  .  . 

Blodgett,  J.^  .  .  .  The  defendants  can  take  nothing  by  their 
exceptions  to  the  denial  of  their  motions  for  a  nonsuit  and  to 
direct  a  verdict  in  their  favor.  If  at  the  time  the  plaintiff  rested 
he  had  not  adduced  competent  evidence  to  sustain  a  verdict  in 
his  favor  (as  to  which  no  intelligent  opinion  can  be  expressed 
without  additional  facts),  it  is  now  immaterial  because  the  de- 
fendants, instead  of  risking  their  case  upon  their  exception  to  the 
denial  of  their  motion  for  a  nonsuit,  went  on  with  the  trial  and 
introduced  their  evidence,  and  the  deficiency,  if  any,  of  the  plain- 
tiff's evidence  was  supplied  by  one  side  or  the  other  before  the 
case  went  to  the  jury,  inasmuch  as  it  is  found  that  at  some  stage 
of  the  trial  there  was  testimony  from  numerous  witnesses  to  and 
against  the  defendants'  knowledge  of  the  bracket's  defective  and 
unsound  condition;  so  that  when  all  the  proof  was  in  the  case, 
there  was  no  ground  of  exception  for  the  reason  of  its  insufficiency 
to  sustain  a  verdict  for  the  plaintiff,  and  this  being  so,  it  is  wholly 
indifferent  by  which  party  the  proof  was  introduced.  Fletcher  v. 
Thompson,  55  N.  H.  308,  309,  and  authorities  cited;  Oakes  v. 
Thornton,  28  N.  H.  44,  47  (per  Woods,  J.).  And  this  testimony 
also  rendered  the  renewal  of  the  motion  at  the  close  of  the  evi- 
dence unseasonable  (Brown  v.  Insurance  Co.,  59  N.  H.  298,  307), 
and  precluded  the  granting  of  the  motion  to  direct  a  verdict  for 
the  defendants.     Shepardson  v.  Perkins,  58  N.  H.  354,  355. 

The  result  is  that  the  defendants'  exceptions  on  this  branch  of 
the  case  are  overruled,  and  their  other  exceptions  hereinbefore 
considered  sustained.  Verdict  set  aside.^ 

Clark,  J.,  did  not  sit:  the  others  concurred. 

'  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 

2  Weber  v.  K.  C.  Cable  Ry.  Co.,  100  Mo.  194,  12  S.  W.  804,  13  S.  W.  587, 
7  L.  R.  A.  819;  Burnham  v.  Concord  R.  R.,  69  N.  H.  280,  45  Atl.  563,  accord. 

The  court's  refusal  to  direct  a  verdict  for  the  defendant  at  the  close  of  the 
plaintiff's  evidence  does  not  preclude  the  direction  of  such  a  verdict  at  the 
close  of  all  the  evidence.  McDermott  v.  Burke,  256  111.  401,  100  N.  E.  168 
—  Ed. 


SPENCER   V.    THE    STATE    OF   NEW    YORK  339 

SPENCER  V.   THE   STATE   OF  NEW   YORK. 
Court  of  Appeals  of  New  York.     1907. 
[Reported  187  New  York,  484.] 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Su- 
preme Court  in  the  third  judicial  department,  entered  January  16, 
1906,  affirming  a  judgment  in  favor  of  plaintiff  entered  upon  an 
award  of  the  Court  of  Claims. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

HiscocK,  J.^  While  plaintiff  was  at  work  for  defendant  around 
one  of  its  canal  bridges,  in  the  city  of  Rochester,  he  was  struck  and 
injured  by  a  plank  which  was  thrown  down  upon  him  from  the 
elevated  bridge  by  one  Patterson,  who  was  a  bridgetender,  and  for 
the  damages  resulting  from  such  injuries  he  has  recovered  judg- 
ment. 

It  is  urged  in  behalf  of  the  appellant  that  at  the  time  Patterson 
injured  the  respondent,  he  was  engaged  in  an  enterprise  of  his  own 
and  was  not  in  any  degree  whatever  acting  within  the  scope  of  his 
employment  so  as  to  render  the  state  liable  for  his  misconduct,  and 
that,  therefore,  the  plaintiff  should  have  been  nonsuited  upon  the 
trial.  We  think  that  there  would  be  great  force  in  this  contention 
if  the  appellant  were  in  position  to  make  it,  but  as  the  case  is  pre- 
sented upon  appeal  this  question  is  not  available. 

If  the  appellant's  contention  is  correct,  then  there  was  no  evi- 
dence upon  which  the  Court  of  Claims  could  render  judgment  in 
favor  of  the  plaintiff,  and  his  complaint  should  have  been  dismissed 
as  a  matter  of  law  upon  a  motion  for  a  nonsuit.  Such  motion  was 
duly  made  at  the  close  of  the  plaintiff's  case  and  denied.  Defend- 
ant then  proceeded  to  offer  evidence  upon  its  behalf  and  at  the 
close  of  all  the  evidence  the  motion  for  a  nonsuit  was  not  renewed, 
but  the  case  was  submitted  to  the  court  for  consideration,  and 
thereafter  what  amount  to  findings  of  fact  were  made  and  judg- 
ment rendered.  In  fact,  the  request  made  at  the  close  of  all  the 
evidence  by  the  deputy  attorney-general  that  the  court  should 
"  Find  that  it  was  no  part  of  Mr.  Patterson's  duty  to  be  on  this 
bridge  and  he  was  not  in  any  sense  acting  as  the  officer,  agent  or 
servant  of  the  State  in  doing  what  he  did  do  that  caused  the  in- 
jury," seems  almost  to  imply  the  idea  of  a  question  of  fact  to  be 
passed  upon.     Certainly  it  was  not  fairly  a  motion  for  a  nonsuit, 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 


340  TRIAL 

and  no  ruling  was  made  and  consequently  no  exception  taken  which 
would  enable  this  court  to  pass  upon  the  rights  of  the  defendant  as 
they  then  stood. 

-^  It  is  well  settled  that  upon  a  trial  the  defendant  may  supply  de- 
ficiencies in  plaintiff's  proof,  and  that  in  courts  of  record  at  least, 
the  failure  to  renew  or  make  a  motion  for  a  nonsuit  at  the  close  of 
all  the  evidence  will  be  regarded  as  an  admission  that  there  is  some 
question  of  fact  to  be  passed  upon  and  a  waiver  of  the  right  to  have 
the  complaint  and  case  dismissed  as  a  matter  of  law.  Jones  v. 
Union  Ry.  Co.,  18  App.  Div.  267;  Griffith  v.  Staten  Island  R.  T. 
R.  R.  Co.,  89  Hun,  141;  Hobson  v.  N.  Y.  Condensed  Milk  Co.,  25 
App.  Div.  Ill;  Barrett  v.  Third  Ave.  R.  R.  Co.,  45  N.  Y.  628 

These  views  lead  to  the  conclusion  that  without  consideration 
of  its  merits  the  judgment  appealed  from  must  be  affirmed,  with 
costs.^ 

CuLLEN,  Ch.  J.,  Gray,  Edward  T.  Bartlett  and  Haight, 
JJ.,  concur;  Willard  Bartlett,  J.,  concurs  in  result;  Chase,  J., 
not  sitting.  Judgment  affirmed. 


YOUNG,  Administratrix,  v.  CENTRAL  RAILROAD  COMPANY 
OF  NEW  JERSEY. 

Supreme  Court  of  the  United  States.     1914. 

[Reported  232  United  States,  602.] 

White,  C.  J.  As  administratrix  of  the  estate  of  her  deceased 
husband,  the  plaintiff  in  error  sued  to  recover  for  the  loss  occa- 
sioned by  his  death  alleged  to  have  resulted  from  the  negligence  of 
the  defendant  railroad  company.  Over  the  objection  of  the  de- 
fendant the  case  was  submitted  by  the  trial  court  to  the  jury  and 
from  the  judgment  entered  on  the  verdict  rendered  against  the 
railroad  company,  error  was  by  the  company  prosecuted  from  the 
Circuit  Court  of  Appeals.  On  the  hearing  that  court  concluding 
that  the  evidence  did  not  justify  the  submission  of  the  case  to  the 
jury,  reversed  the  judgment  and  in  passing  upon  a  motion  made 
by  the  railroad  company  in  the  trial  court,  pursuant  to  the  Penn- 

1  Columbia  R.  R.  Co.  v.  Hawthorne,  144  U.  S.  202,  36  L.  ed.  405,  12  S.  Ct. 
591;  Joliet,  A.  &  N.  Ry.  Co.  v.  Velie,  140  111.  59,  29  N.  E.  706;  Barabasz  v. 
Rabat,  91  Md.  53,  46  Atl.  337;  Goss  v.  Calkins,  162  Mass.  492,  39  N.  E. 
469;  Hall  v.  Wakefield,  etc.,  Ry.  Co.,  178  Mass.  98,  59  N.  E.  668,  accord.  See 
Wigtnore,  Evidence,  sec.  2496.  —  Ed. 


BOTHWELL    V.    BOSTON    ELEVATED    RAILWAY    COMP-ANY         341 

sylvania  practice  for  judgment  in  its  favor  non  obstante  veredicto  it 
was  held  that  the  motion  was  well  taken  and  the  case  was  remanded 
to  the  trial  court  not  for  a  new  trial,  but  with  directions  to  enter  a 
judgment  for  the  defendant,  (200  Fed.  Rep.  359.)  As  a  case  as 
made  by  the  pleadings  depended  not  merely  upon  diverse  citizen- 
ship, but  was  expressly  based  on  the  Employers'  LiabiUty  Act, 
error  was  prosecuted  from  this  court. 

We  shall  not  undertake  to  analyze  the  evidence  or  review  the 
grounds  which  led  the  court  below  to  conclude  that  error  was  com- 
m.itted  in  submitting  the  case  to  the  jury,  because  we  think  it  is 
adequate  to  say  that  after  a  careful  examination  of  the  record  we 
see  no  reason  for  holding  that  the  court  below  erred  in  so  deciding. 
As  regards  however,  the  ruling  on  the  motion  for  judgment  non 
obstante  veredicto,  it  is  apparent  in  view  of  the  recent  decision  in 
Slocum  V.  Insurance  Company,  228  U.  S.  364,  that  error  was  com- 
mitted. It  follows  that  our  duty  is  to  affirm  and  modif 3^ ;  that  is, 
to  affirm  the  judgment  of  reversal  and  to  modify  by  reversing  so 
much  of  the  action  of  the  court  below  as  directed  the  entry  of  a 
judgment  in  favor  of  the  defendant.  Conformal^ly  to  this  con- 
clusion it  is  ordered  that  the  judgment  of  reversal  be,  and  the  same 
is  hereby  affirmed,  and  that  the  direction  for  entry  of  judgment  in 
favor  of  defendant  be  reversed  and  the  case  is  remanded  to  the 
trial  court  with  directions  to  set  aside  its  judgment  and  grant  a  new 
trial.  Affirmed  and  modified. 


BOTHWELL,  Administrator,  v.  BOSTON  ELEVATED 
RAILWAY  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1913. 
[Reported  215  Massachusetts,  467.] 

Tort  under  St.  1907,  c.  392,  for  the  death  of  WilHam  J.  Both- 
well,  caused  by  his  being  run  into  by  a  car  of  the  defendant  on 
Washington  Street  in  that  part  of  Boston  called  Roslindale,  and 
alleged  to  have  been  due  to  negligence  of  the  motorman  of  the 
car.  .  .  . 

The  jury  found  for  the  plaintiff  in  the  sum  of  $5,000;  and  the 
defendant  alleged  exceptions. 

RuGG,  C.J ^   It  is  urged  by  the  defendant  that  this  is  a  proper 

^  A  part  of  the  statement  of  facts  is  omitted  together  with  a  part  of  the 
opinion  in  which  the  evidence  was  examined  and  held  to  show  contributory 
negUgence,  and  in  which  it  was  held  that  the  defendant's  request  that  a  verdict 
be  directed  in  his  favor  should  have  been  granted.  —  Ed. 


342  TRIAL 

case  for  this  court  to  exercise  the  power  vested  in  it  by  St.  1909,  c. 
236,  and  to  direct  by  its  rescript  that  judgment  be  entered  for  the 
defendant.  The  case  appears  to  have  been  fully  and  fairly  tried 
with  an  intelligent  appreciation  by  counsel  on  each  side  of  the  issues 
involved  and  of  the  principles  of  law  applicable  to  it,  and  its  merits 
on  the  ample  report  of  the  evidence  contained  in  the  exceptions 
seem  plain.  Therefore  it  appears  to  be  a  case  where  the  statute 
properly  may  be  invoked.  Archer  v.  Eldredge,  204  Mass.  323, 
327.  Grebenstein  v.  Stone  &  Webster  Engineering  Corp.,  205 
Mass.  431,  440.  Newhall  y.  Enterprise  Mining  Co.,  205  Mass.  585. 
Burke  v.  Hodge,  211  Mass.  156,  163. 

This  course  would  be  followed  without  discussion  but  for  the 
decision  of  Slocum  v.  New  York  Life  Ins.  Co.,  228  U.  S.  364,  which 
holds  that  "  the  right  of  trial  by  jury  "  secured  by  art.  7  of  the 
Amendments  to  the  Constitution  of  the  United  States  does  not 
permit  the  entry,  after  a  verdict  in  favor  of  one  party,  of  a  judg- 
ment for  the  opposing  party  under  circumstances  like  those  in  the 
case  at  bar.  The  question  there  arose  in  reviewing  the  action  of 
the  Circuit  Court  of  Appeals  which,  under  the  conformity  act 
(U.  S.  Rev.  Sts.,  §  914)  and  following  a  Pennsylvania  statute,  had 
entered  judgment  in  favor  of  the  party  for  whom  the  trial  court 
erroneously  refused  to  direct  a  verdict.  The  substance  of  that 
decision  is  that  it  is  an  unconstitutional  exercise  of  the  power  of 
legislation  to  authorize  the  entry  of  judgment  in  a  case  where  a 
trial  by  jury  has  been  had,  except  in  conformity  to  the  verdict,  and 
that,  although  the  error  committed  by  the  trial  court  may  consist 
solely  in  its  refusal  to  direct  a  verdict  in  favor  of  one  party,  yet 
after  a  verdict  wrongly  rendered  in  favor  of  the  adverse  party  as 
the  direct  result  of  such  erroneous  refusal,  the  only  method  for 
correcting  that  error  within  the  reach  of  the  legislative  or  judicial 
departments  of  government  is  to  order  a  new  trial,  and  this  because 
of  the  scope  of  the  meaning  of  "  trial  by  jury,"  as  secured  by  the 
Seventh  Amendment  to  the  Federal  Constitution.  That  decision 
is  not  a  final  or  binding  authority  on  this  court,  for  the  reason  that 
the  Seventh  Amendment  does  not  control  the  action  of  the  several 
States  in  abridging  trial  by  jury  within  their  own  jurisdiction.  It 
applies  only  to  the  courts  and  Congress  of  the  United  States. 
Pearson  v.  Yewdall,  95  U.  S.  294,  296.  Twining  v.  New  Jersey,  211 
U.  S.  78,  98.  The  decision  of  Slocum  v.  New  York  Life  Ins.  Co. 
was  rendered  by  a  bare  majority  of  a  divided  court,  four  of  the 
justices,  among  whom  is  a  former  chief  justice  of  this  court,  joining 
in  a  dissenting  opinion.     But  the  deference  due  to  a  decision  by 


BOTHWELL    V.    BOSTON    ELEVATED    RAILWAY    COMPANY         343 

the  highest  court  of  the  nation  when  it  challenges  the  constitution- 
aUty  of  our  statute  (as  it  does  because  our  own  constitution  secures 
the  right  of  trial  by  jury)  renders  necessary  thorough  consideration, 
even  though  our  statute  has  been  acted  upon  heretofore  in  numer- 
ous instances  without  question  of  its  validity. 

The  substance  of  our  statute  is  that  in  civil  cases  where  at  the 
trial  a  request  has  been  made  that  on  all  the  evidence  a  finding  or 
verdict  be  returned  for  either  party,  and  such  request  has  been 
denied  and  a  fincling  or  verdict  has  been  rendered  contrary  thereto, 
and  it  shall  be  held  by  this  court  on  exceptions  that  such  request 
should  have  been  granted,  then  (if  all  exceptions  by  the  prevailing 
party  shall  be  overruled)  this  court  may  by  rescript  direct  the  entry 
in  the  trial  court  of  judgment  for  the  party  in  whose  behalf  the 
request  for  the  finding  or  verdict  was  made  and  erroneously  refused. 
Before  the  statute  of  1909  no  such  power  resided  in  any  of  our 
courts.  The  practice  is  stated  with  clearness  in  Smith  v.  Lincoln, 
198  Mass.  388,  where  it  was  held  that  after  a  verdict  the  only 
power  of  the  trial  judge  was  to  set  aside  the  verdict.  The  aim  of 
the  act  is  plain  both  from  its  provisions  and  its  title,  "  To  provide 
for  expediting  the  final  determination  of  causes."  However  laud- 
able the  design  for  preventing  delays  in  the  administration  of  jus- 
tice, it  can  be  exercised  only  in  accordance  with  the  limitations 
imposed  by  the  constitution.  Article  15  of  the  Declaration  of 
Rights  of  our  Constitution  provides:  "  In  all  controversies  con- 
cerning property,  and  in  all  suits  between  two  or  more  persons, 
except  in  cases  in  which  it  has  heretofore  been  otherways  used  and 
practised,  the  parties  have  a  right  to  a  trial  by  jury;  and  this 
method  of  procedure  shall  be  held  sacred,  unless,  in  causes  arising 
on  the  high  seas,  and  such  as  relate  to  mariners'  wages,  the  Legis- 
lature shall  hereafter  find  it  necessary  to  alter  it."  This  article 
has  been  discussed  in  numerous  cases.  It  has  been  held  that  the 
Legislature  may  regulate  the  mode  in  which  the  right  shall  be 
exercised  and  that  such  regulation  does  not  impair  the  substance 
of  the  right.  This  rule  has  been  applied  to  statutes  requiring  as  a 
condition  precedent  to  the  trial  an  affidavit  of  defense,  Hunt  v. 
Lucas,  99  Mass.  404;  the  filing  of  a  claim  for  a  trial  by  jury  in  order 
to  prevent  waiver  of  the  right,  Foster  v.  Morse,  132  Mass.  354; 
appeal  from  decision  of  tribunal  ^dthout  a  jury,  Kenney's  case,  108 
Mass.  492;  the  giving  of  bail  and  security  for  costs  on  appeal  from 
trial  before  a  magistrate,  Jones  v.  Robbins,  8  Gray,  329,  341,  Hap- 
good  V.  Doherty,  8  Gray,  373;  and  to  statutes  changing  the  rule 
as  to  challenges  of  jurors.  Commonwealth  v.  Dorsey,  103  Mass. 


344  TRIAL 

412;  the  qualifications  of  jurors,  Commonwealth  v.  Wong  Chung, 
186  Mass.  231,  Commonwealth  v.  Worcester,  3  Pick.  462,  and  the 
weight  to  be  given  to  evidence,  Holmes  v.  Hunt,  122  Mass.  505, 
516;  and  restricting  the  right  of  the  trial  judge  to  set  aside  a  ver- 
dict to  cases  where  motion  therefor  is  made  and  to  reasons  stated, 
Peirson  v.  Boston  Elevated  Railway,  191  Mass.  223,  229,  Loveland 
V.  Rand,  200  Mass.  142,  James  v.  Boston  Elevated  Railway,  213 
Mass.  424.     See  Commonwealth  v.  Barry,  9  Allen,  276. 

On  the  other  hand  it  has  been  said  that  trial  by  jury  implies 
power  of  the  judge  to  set  aside  a  verdict  and  grant  a  new  trial, 
which  cannot  be  impaired  by  the  Legislature.  Opinion  of  the 
Justices,  207  Mass.  606.  Capital  Traction  Co.  v.  Hof,  174 
U.S.  1. 

None  of  these  cases  are  decisive  of  the  point  now  presented.  It 
becomes  necessary  to  consider  the  nature  of  the  trial  by  jury  se- 
cured by  our  Constitution.  There  was  great  diversity  in  the  form 
of  jury  trial  existing  in  the  several  States  at  the  time  of  the  adop- 
tion of  the  Constitution  of  the  United  States.  This  is  discussed 
with  fecundity  of  illustration  by  Hamilton  in  No.  83  of  the  Federal- 
ist. Plurality  of  jury  trials  in  Massachusetts  in  the  same  case 
there  is  referred  to.  Indeed,  this  variety  of  custom  between  the 
States  has  been  said  to  have  been  the  reason  why  no  article  secur- 
ing trial  by  jury  in  civil  cases  was  inserted  in  the  Constitution  by 
the  convention  which  framed  it.     5  Elliot's  Debates,  550. 

The  trial  by  jury  preserved  by  our  Constitution  is  the  common 
law  trial  by  j  urj^  in  its  essential  characteristics  as  known  and  under- 
stood at  the  time  the  Constitution  was  adopted.  Commonwealth 
V.  Anthes,  5  Gray,  185,  229.  It  did  not  mean  to  preserve  the  minor 
details  or  unessential  formalities  of  the  trial  by  jury  as  it  then 
existed  either  in  England  or  here.  That  is  plain  both  on  reason 
and  authority.  Trial  by  jury  in  some  form  had  existed  since  the 
early  settlement  of  this  State.  Modifications  of  the  system  as 
practised  in  the  mother  country  had  grown  up  by  custom  and  by 
legislation  in  the  Colony  and  Province  of  Massachusetts  Bay.  It 
is  not  to  be  thought  that  the  framers  of  our  Constitution  in  1780, 
performing  their  labors  in  the  midst  of  the  War  of  the  Revolution, 
had  in  mind  the  system  of  the  mother  country  rather  than  that 
with  which  they  were  familiar  by  daily  observation.  As  we  under- 
stand, the  substance  of  trial  by  jury  in  England  and  in  Massachu- 
setts was  the  same  although  there  were  differences  of  detail. 
Parker  v.  Simpson,  180  Mass.  334,  355.  If,  however,  essential 
differences  existed,  it  seems  to  us  not  open  to  debate  that  the  trial 


BOTHWELL   V.    BOSTON    ELEVATED    RAILWAY    COMPANY         345 

by  jury  known  and  practised  in  this  State  at  the  time  the  Constitu- 
tion was  framed  and  adopted  was  the  one  meant  by  art.  15  of  our 
Declaration  of  Rights.  It  was  pointed  out  with  ample  reference 
to  the  statutes  by  Mr.  Justice  Story  in  United  States  v.  Wonson, 
1  Gall.  5,  that  both  in  the  colonial  and  provincial  periods  of  the 
history  of  our  Commonwealth  two  trials  by  jury  upon  the  same 
issues  in  the  same  case  often  were  permissible  as  of  right,  one  in  the 
court  of  first  instance  and  one  in  the  appellate  court.  This  con- 
tinued to  be  the  law  until  after  the  ratification  of  the  Federal  Con- 
stitution. St.  1782,  c.  II,  §§  2,  5;  c.  14,  §  3.  St.  1784,  c.  28,  §  8. 
It  has  never  been  suggested,  so  far  as  we  are  aware,  that  this  double 
jury  trial  was  one  of  the  incidents  of  the  constitutional  right  of  our 
citizens.  Under  our  practice  trial  by  jury  in  its  constitutional 
sense  does  not  include  all  the  features  which  attach  to  the  right  in 
England.  This  is  pointed  out  in  Simmons  v.  Fish,  210  Mass.  563, 
569,  where  one  difference  touching  the  scope  of  a  new  trial  is  dis- 
cussed. Our  cases  there  are  reviewed  at  length  and  it  is  shown 
that  a  new  trial  in  this  State  (contrary  to  the  established  law  of 
England)  has  been  construed  not  to  require  a  new  trial  of  all  the 
issues  raised  by  the  pleadings  when  in  law  and  in  the  exercise  of 
sound  sense  it  appears  that  the  issue  as  to  which  alone  error  was 
committed  in  the  trial  is  wholly  separable  from  those  as  to  which 
a  full  and  fair  trial  in  law  was  had  and  may  with  entire  justice  and 
a  jealous  regard  to  the  rights  of  all  parties,  both  in  their  strictly 
legal  aspects  and  in  the  practical  phases  likely  to  arise  in  a  jury 
trial,  be  submitted  as  a  separate  and  distinct  matter  to  be  deter- 
mined by  a  new  jury.  This  power  is  exercised  with  caution.  But 
its  existence  does  not  impair  in  any  of  its  essential  features  the 
right  of  trial  by  jury  which  the  Constitution  commands  to  be  held 
sacred.  See  Randall  v.  Peerless  Motor  Car  Co.,  212  Mass.  352, 
392;  25  Ann.  Cas.  588,  and  cases  collected. 

It  was  a  part  of  common-law  trial  by  jury  that  the  plaintiff 
might  become  nonsuited  as  of  right  at  any  time  before  verdict  if 
not  before  judgment.  Derick  v.  Taylor,  171  Mass.  444,  and  cases 
there  collected.  2  Tidd's  Pract.  867.  Haskell  v.  Whitney,  12 
Mass.  47,  and  cases  cited  in  note  at  p.  49.  But  as  early  as  1820  it 
was  decided  that  in  this  Commonwealth  apparently  as  a  practice 
long  existing  a  plaintiff  had  no  such  right  after  the  case  was  opened 
to  the  jury.  Locke  v.  Wood,  16  Mass.  317.  See  Carpenter  &  Sons 
Co.  V.  New  York,  New  Haven,  &  Hartford  Railroad,  184  Mass.  98. 
It  is  pointed  out  both  in  the  opinion  and  in  the  dissent  in  Slocum 
V.  New  York  Life  Ins.  Co.,  228  U.  S.  364,  that  there  is  no  novelty 


346  TRIAL 

in  a  judgment  being  given  at  common  law  without  a  verdict  by  a 
jury  for  that  was  accompHshed  by  a  demurrer  to  evidence.  Cope- 
land  V.  New  England  Ins.  Co.,  22  Pick.  135.  It  is  stated  that  our 
statutes  make  simpler  provision  for  reaching  the  result  available 
by  that  common-law  method.  Golden  v.  Knowles,  120  Mass.  336. 
There  are  other  similar  instances.  It  is  laid  down  in  2  Tidd's 
Pract.  900  (a  work  of  undoubted  authority  as  to  common  law)  as  a 
principle  of  jury  practice  at  common  law  that  *'  It  sometimes 
happens  that  a  point  is  reserved,  or  saved  by  the  judge  at  nisi  prius, 
with  liberty  to  apply  to  the  court  for  a  nonsuit  or  verdict;  in  which 
case,  the  court  has  been  in  the  habit  of  considering  itself  in  the 
situation  of  the  judge,  at  the  time  of  the  objection  raised;  and  a 
nonsuit  or  verdict  is  entered  accorchng  to  their  determination, 
without  subjecting  the  parties  to  the  delay  and  expense  of  a  new 
trial."  Numerous  cases  there  are  cited  where  such  practice  has 
been  adopted,  the  following  being  the  most  pertinent:  Cox  v. 
Kitchin,  1  B.  &  P.  338;  Attwood  v.  Small,  1  Man.  &  Ry.  246,  261 
(a);  Mead  v.  Robinson,  Barnes's  Notes,  451;  Kemp  v.  The  Hun- 
dred of  Strafford,  Barnes's  Notes,  455.  Judgment  appears  not 
infrequently  to  have  been  entered  by  order  of  the  appellate  court 
upon  special  case  stated.  See  for  example  Wright  v.  Cartwright, 
1  Burr.  282;  Atkin  v.  Barwick,  1  Strange,  165;  Coppendale  v. 
Bridgen,  2  Burr.  814.  This  practice  seems  to  have  been  followed 
in  New  York  in  some  instances,  Holmes  v.  D'Camp,  1  Johns.  34; 
Hatten  v.  Speyer,  1  Johns.  37;  and  perhaps  rested  in  many  in- 
stances on  consent.  2  Tidd's  Pract.  898.  This  is  akin  to  our 
practice  on  a  case  stated.  Massachusetts  National  Bank  v.  Bul- 
lock, 120  Mass.  86. 

A  somewhat  analogous  practice  is  described  at  length  in  Treacher 
V.  Hinton,  4  B.  &  Aid.  413,  416,  417,  in  the  compulsory  nonsuit  by 
the  judge,  giving  the  plaintiff  liberty  to  move  for  a  verdict  in  his 
favor,  which,  if  subsequently  ruled  to  have  been  required  by  law, 
then  might  be  entered  to  be  as  effective  as  if  pronounced  by  the 
jury.  This  case,  decided  in  1821,  states  apparently  a  well  under- 
stood and  ancient  common  law  practice,  no  doubt  in  existence  at 
the  time  of  the  adoption  of  our  Constitution.  Illustrations  of  this 
practice  are  to  be  found  in  Hobbs  v.  London  &  Southwestern  Rail- 
way, L.  R.  10  Q.  B.  Ill,  113,  125;  Reed  v.  Kilburn  Cooperative 
Society,  L.  R.  10  Q.  B.  264.  See  26  Harv.  Law  Rev.  732.  It  has 
not  been  commonly  supposed  that  in  England  any  impairment  of 
the  vitals  of  trial  by  jury  has  been  wrought  by  modern  statutes. 
See  8  Am.  Law  Rev.  256,  274.     Yet  a  practice  similar  to  that  pre- 


BOTHWELL    V.    BOSTON    ELEVATED    RAILWAY    COMPANY         347 

scribed  by  our  statute  exists  there.  McGuire  v.  Western  Morning 
News  Co.,  [1903]  2  K.  B.  100,  113. 

In  view  of  all  these  considerations  we  are  of  opinion  that  St. 
1909,  c.  238,  is  not  a  violation  of  the  right  to  a  trial  b}^  jury  secured 
by  our  Constitution.  The  falling  into  disuse  of  the  two  trials, 
which  existed  in  many  instances  as  of  right  in  this  Commonwealth 
at  the  adoption  of  the  Constitution,  within  half  a  century  there- 
after, is  evidence  to  this  conclusion.  This  is  confirmed  by  the 
early  denial  to  the  plaintiff 'of  the  right  to  become  nonsuited  after 
the  evidence  was  in.  It  is  supported  by  the  common  law  practice 
to  which  reference  has  been  made. 

The  essence  of  trial  by  jury  is  that  controverted  facts  shall  be 
decided  by  a  jury.  The  constitutional  right  to  trial  by  jury  is  pre- 
served in  this  regard  when  each  party  has  one  fair  opportunity  to 
present  to  a  jury  the  evidence  on  which  he  claims  to  raise  an  issue 
of  fact.  If  he  fails  utterly  to  improve  that  opportunity,  there  is 
no  constitutional  guaranty  that  he  shall  be  given  another  chance. 
He  has  had  his  day  in  court.  One  feature  of  ideal  administration 
of  justice  by  the  jury  system  is  that  correct  rulings  of  law  shall  be 
made  by  the  presiding  judge.  If  the  record  is  so  framed  and  pre- 
served that  the  same  result  may  be  reached  at  a  later  time  as  would 
have  been  attained  by  such  correct  rulings  at  the  trial  that  end  is 
attained  by  constitutional  means.  The  function  of  the  jury  is  to 
pass  upon  the  facts  involved  in  an  action.  The  statute  now  under 
review  does  not  infringe  upon  this  province  in  any  degree.  A  trial 
judge  always  has  had  power  to  direct  a  verdict  provided  the  law 
required  it.  The  statute  simply  permits  that  to  be  done  by  this 
court  which  ought  to  have  been  done  at  the  trial.  The  hypothesis 
by  which  alone  it  permits  the  order  to  be  made  is  that  at  the  trial 
no  question  of  fact  was  in  truth  presented,  but  only  one  of  law 
which  the  court  should  have  ruled  as  such.  It  does  not  disturb 
the  plain  boundary  between  fact  which  a  jury  must  determine  and 
law  which  the  court  must  rule.  It  permits  the  right  ruling  to  be 
given  at  a  time  later  than  that  at  which  it  should  have  been  made 
when  no  substantial  rights  have  accrued  in  the  meantime. 

We  are  of  opinion  that  the  history  of  our  practice  as  to  trial  by 
jury  both  before  and  since  the  adoption  of  the  Constitution  shows 
that  the  trial  by  jury  of  our  Constitution  has  slightly  more  flexi- 
bility in  its  adaptation  of  details  to  the  changing  needs  of  society 
without  in  any  degree  impairing  its  essential  character  than  is 
ruled  by  the  majority  of  the  court  in  Slocum  v.  New  York  Life  Ins. 
Co.     We  are  constrained  not  to  adopt  the  reasoning  or  the  con- 


348  TRIAL 

elusion  of  that  opinion  as  correctly  defining  the  scope  of  legislative 
power  under  our  Constitution.  St.  1909,  c.  236,  is  not  in  violation 
of  our  Constitution.  This  result  is  in  harmony  with  the  decisions, 
of  many  other  courts.^  We  do  not  rest  this  judgment  upon  their 
authority,  however,  for  we  have  not  undertaken  the  historical 
study  of  the  several  constitutional  provisions  under  which  they 
have  arisen  to  determine  their  weight. 

The  defendant's  exceptions  are  sustained,  and  in  accordance  with 
St.  1909,  c.  236,  judgment  is  to  be  entered  in  the  Superior  Court 
for  the  defendant  and  rescript  is  to  go  to  that  effect. 

So  ordered.^ 

1  Anderson  v.  Fred  Johnson  Co.,  116  Minn.  56.  Muench  v.  Heinemann,  119 
Wis.  441,  448.  Hay  v.  Baraboo,  127  Wis.  1.  Cornette  v.  Baltimore  &  Ohio 
Raib-oad,  115  C.  C.  A.  61.  Bailey  v.  Willoughby,  33  Okla.  194.  McVeety  v. 
Harvey  Mercantile  Co.,  139  N.  W.  Rep.  586.  Fishburne  v.  Robinson,  49 
Wash.  271.  Roe  v.  Standard  Furniture  Co.,  41  Wash.  546.  Cruikshank  v.  St. 
Paul  Fire  &  Marine  Ins.  Co.,  75  Minn.  266.  Dalmas  v.  Kemble,  215  Penn. 
St.  410.  American  Car  &  Foundry  Co.  v.  Alexandria  Water  Co.,  221  Penn. 
St.  529.  Manning  v.  Orleans,  42  Neb.  712.  Smith  v.  Jones,  104  C.  C.  A.  329. 
Fries-BresUn  Co.  v.  Bergen,  99  C.  C.  A.  384.  Carstairs  v.  American  Bonding 
&  Trust  Co.,  54  C.  C.  A.  85.  Richmire  v.  Andrews  &  Gale  Elevator  Co.,  11 
No.  Dak.  453. 

2  For  a  criticism  of  Slocum  v.  New  York  Life  Ins.  Co.,  228  U.  S.  364,  57  L. 
ed.  879,  33  S.  Ct.  523,  cited  in  the  principal  case,  see  an  article  on  "  Trial  by 
Jury  in  United  States  Courts  "  by  J.  L.  Thorndike,  Esq.,  in  26  Harv.  L.  Rev. 
732. 

As  to  the  power  of  the  court  to  compel  obedience  to  its  peremptory  in- 
struction to  find  a  verdict  for  one  of  the  parties,  see  Grimes  Dry  Goods  Co.  v. 
Malcolm,  164  U.  S.  483,  41  L.  ed.  524,  17  S.  Ct.  158;  Van  Ness  v.  Van  Ness, 
Fed.  Cas.  No.  16,  869;  Cahill  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  20  C.  C.  A.  184, 
74  Fed.  285;  Cloquet  Lumber  Co.  v.  Burns,  124  C.  C.  A.  600,  207  Fed.  40; 
Curran  v.  Stein,  110  Ky.  99,  60  S.  W.  839;  Pardee  v.  Orvis,  103  Pa.  451. 

In  Curran  v.  Stein,  supra,  the  court  said:  "It  is  insisted  for  appellant  that 
the  court  erred  in  giving  the  jury  a  peremptory  instruction,  or  in  interfering 
with  the  freedom  of  their  delil:>eration  by  requiring  them  to  return  a  verdict 
which  they  were  unwilling  to  render.  There  was  no  error  of  the  court  in  re- 
quiring the  jury  to  obey  his  instructions.  The  peremptory  instruction  of  the 
court  to  the  jury,  like  any  other  order  the  court  may  make  in  the  case,  must 
be  obeyed.  The  verdict,  though  in  form  the  act  of  the  jury,  is  really  the  act 
of  the  court.  The  court  determines  the  case.  The  verdict  of  the  jury  is 
merely  a  form  of  putting  of  record  the  judgment  which  the  court  has  given. 
To  hold  that  the  jury  may  disobey  the  peremptory  direction  of  the  court 
would  be  to  vest  the  jury  with  power  to  review  the  decision  of  the  court 
on  the  law  of  the  case.  In  some  jurisdictions  the  practice  is  for  the  court  to 
discharge  the  jury  and  enter  the  judgment.  The  substance  is  the  same  when 
the  jury  find  a  verdict  by  the  peremptory  direction  of  the  court.  It  is  proper 
that  the  verdict,  as  in  this  case,  should  show  on  its  face  that  it  is  made  under 
the  order  of  the  court,  for  this  relieves  the  jury  of  all  responsibility  for  it." 
—  Ed. 


McGEE  349 

Section  VII. 

Argument  and  Conduct  of  Counsel. 

SODOUSKY,  etc.  v.   McGEE. 

Court  of  Appeals  of  Kentucky.     1830. 

[Reported  4  J.  J.  Marshall,  267.] 

Robertson,  C.  J.^  The  appellants  (nine  in  number)  have 
assigned  various  errors  in  a  judgment  obtained  against  them,  for 
$100,  by  the  appellee,  in  a  joint  action  of  assault  and  battery, 
instituted  against  them  and  four  others.  Two  of  the  appellants 
pleaded  justification  severally.  Some  of  them  pleaded  not  guilty, 
jointly,  and  some  not  guilty,  severally.  Several  counsel  were 
engaged  in  the  defense,  some  of  them  representing  several  of  the 
defendants  to  the  action  jointly,  and  some  apjjearing  for  other 
defendants  severally  and  alone.  .  .  . 

Jacob  Sodousky,  who  had  filed  a  separate  plea  of  not  guilty,  ex-\ 
pressed  a  wish  to  be  heard  before  the  jury  by  his  counsel;  but  he  j 
was  not  allowed  to  be  thus  heard,  because  "  there  were  two  other 
attorneys  permitted  to  argue  the  cause  before  the  jury,  who  were  f 
employed  by  his  co-defendants,  but  who  were  not  employed  by  him  / 
(said  Jacob)."  ...  ' 

TPie_circuit.courtdid_n^^  not  permitting  Jacob  Sodousky  to  — > 
be  Jieard  by  his  counsel.  It  does  noTappeaFtEat  any  other  counsel  ( 
who  was  heard,  represented  him,  nor  that  his  counsel,  who  repre-  (\ 
sented  others  also,  was  heard  in  behalf  of  those  others;  if  he  had 
been,  there  could  be  no  ground  for  complaint,  because  he  was  not 
entitled  to  more  than  one  speech,  merely  because  he  appeared  for 
several  defendants. 

^Every  person  has  a  legal,  as  well  as  a  natural  right  to  be  heard  in 
his  own  cause;  and  no  rule  of  practice  can  deprive  him  of  that 
right,  if,  at  a  proper  time,  and  in  a  proper  manner,  he  proposes  to 
exercise  it.  It  is  a  rule  of  practice  in  the  courts  of  this  state,  to 
permit  two,  and  only  two  counsel  to  speak  on  each  side  in  civil 
cases;  this  is  sufficiently  liberal.  The  number  might  be  reduced  to 
one,  and  there  could  be  no  just  complaint;  aU  that  a  party  can 
demand  is,  that  he  shall  be  heard  by  himself,  or  by  his  counsel. 
He  cannot  claim  the  right  to  be  heard  by  a  multitude  of  counsel, 
^rJiy  more  thari-ume,  representative..  And  if  there  be  a  plurality 
of  co-plaintiffs,  as  their  right  or  cause  of  action  is  joint,  and  they 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


350  TRIAL 

voluntarily  unite  in  bringing  suit,  they  must  be  considered  as  one 
person,  and  cannot,  therefore,  individually,  demand  as  a  matter 
of  right  to  be  heard  by  more  than  one  counsel.  But  a  plaintiff  may 
sue  whom  he  wills  to  sue.  He  may  bring  a  joint  suit  against 
several,  against  some  of  whom  he  has  no  cause  of  action.  They 
have  not  voluntarily  united  themselves  in  the  action.  They  may 
be  alien  and  hostile  to  each  other;  their  interests  may  be  diverse 
and  repugnant  to  each  other;  some  may  combine  to  escape,  and  to 
throw  the  burden  on  the  others.  Some  may,  therefore,  employ 
counsel  in  whom  others  have  no  confidence,  and  therefore,  will  not 
employ,  and  who  may  be  paid  to  oppose  the  rights  of  those  others. 
Suppose  three  defendants  in  an  action  of  trespass  employ,  severally, 
three  counsel;  each  defendant  being  hostile  to  the  defense  of  his 
co-defendants,  and  the  counsel  of  each  being,  of  course,  opposed  to 
the  right  of  those  on  whom  he  was  employed  to  endeavor  to  throw 
the  burden  of  the  action.  After  two  of  the  defendants  had  been 
heard  by  their  counsel,  should  the  other  be  disfranchised  and  com- 
pelled to  be  "  dumb  "  "  like  the  sheep'  before  the  shearers  ?  " 
Surely  he  would  have  a  clear  and  undeniable  right  to  be  heard. 
The  court  has  no  right,  in  such  a  case,  to  restrict  the  number  of 
counsel  to  two.  The  parties  might  consent  that  some  two  of  their 
several  counsel  should  alone  argue  the  cause  for  all,  and  should, 
perhaps,  be  admonished  to  do  so,  if  it  appear  to  be  reasonable  and 
just.  But  when  their  separate  rights  exist,  they  cannot  be  com- 
pelled to  waive,  or  to  consolidate  them.  If  two  of  the  three 
should  jointly  employ  two  or  more  counsel,  then  the  court  might 
prevent  any  difficulty  or  confusion,  by  refusing  (as  it  should  do)  to 
permit  more  than  one  of  the  joint  counsel  to  speak.  Nor  would  we 
admit,  that  if  the  court  should  clearly  perceive  that  several  counsel 
had  been  separately  employed  by  several  defendants  in  a  joint 
action,  merely  for  purposes  of  unjust  advantage,  when,  in  fact,  the 
counsel  of  one  is  substantially  the  counsel  of  all,  and  when  he  argues 
for  all,  there  would  be  no  power  to  compel  them  to  consolidate  the 
arguments,  and  to  select  for  themselves,  and  among  themselves, 
some  two  counsel  to  argue  the  entire  cause  in  the  defense.  The 
court  should  possess  the  right  to  prevent  any  abuse  by  litigants  of 
their  rights  in  court,  or  any  perversion  of  them  to  vexatious  or 
unjust  ends. 

But  where  it  can  be  satisfactorily  shown  that  one  of  several  joint 
defendants  is  not  identified  in  the  defense  with  his  co-defendants, 
and  not  only  has  disagreed  with  them  in  the  employment  of  counsel, 
but  has  not  been  aided  or  represented  by  their  associated  efforts, 


SODOUSKY   V.    MCGEE  351 

and  in  good  faith  desires  to  appear  in  his  own  defence  by  his  counsel, 
or  "  in  propria  persona,"  the  court  has  no  rightful  power  to  silence 
him.  .  .  . 

If  the  interests  of  the  defendants  seem  to  be  in  unison,  if  the  argu- 
ment for  one  includes  or  benefits  the  others,  and  if  they  all  appear  to 
act  in  concert,  the  court  might  refuse  to  permit  more  than  two  of 
the  counsel  to  be  heard,  and  leave  it  to  the  defendants  to  make  the 
selection. 

It  is  not  shown  that  the  circuit  judge  abused  his  discretion,  or  did 
injustice  to  Jacob  Sodousky  in  this  case.  His  guilt  is  so  manifest, 
that  if  a  jury  had  acquitted  him,  this  court  would  be  bound  to 
grant  a  new  trial.  His  counsel,  in  defending  him  alone,  could  not 
have  ultimately  benefitted  him,  because  the  jury  must  have  found 
him  guilty;  and,  therefore,  he  would  have  been  contributory  to 
the  joint  verdict.  And  as  he  was  not  the  principal  actor,  no  argu- 
ment for  him  alone  could,  according  to  the  facts  exhibited  in  the 
record,  have  diminished  the  guilt  of  the  principal  or  reduced  the 
verdict.  The  guilt  of  the  chief  actor  would  have  been  the  standard 
of  the  finding  agairst  all  who  were  found  guilty.  Therefore, 
Jacob  Sodousky  was  not  concerned  to  persuade  the  jury  that  his 
guilt  was  slight  in  a  comparative  degree,  but  his  only  reasonable 
purpose  was  to  convince  them  of  his  entire  innocence.  Where- 
fore, it  does  not  appear  that  he  was  prejudiced  by  the  decision  of 
the  court. 

Besides,  there  is  much  reason  for  believing  that  the  emploj'ment 
of  several  counsel  was,  in  this  case,  a  pretense  designed  merely  for 
vexation  and  unjust  advantage.  This  the  circuit  judge  must  have 
perceived,  from  all  the  circumstances  characterizing  the  defense. 
Judging  from  the  record,  we  are  sure  that  he  might  have  appre- 
hended contrivance.  Jacob  Sodousky  did  not  show,  as  he  ought 
to  have  done,  that  hejiad  a  reasj)n^bXe_.clairDLlo. be. heard  separately. 
Under  all  the  circumstances,  therefore,  wfi  are  unable  to  ascertain 
that  the  circuit  juclggjerred,  or  transcended  the  limits  of  a  sound 
and  enlightened  discretion,  or  that  Jacob  Sodousky  has  any  just 
cause  ToF complaint.  .  .  . 

We  have,  therefore,  come  to  the  conclusion  that  there  is  no  error 
in  the  judgment. 

Wherefore,  it  must  be  affirmed.^ 

1  As  to  the  right  to  argue,  see  Smith  v.  Marx,  93  Ala.  311,  9  So.  194;  Doug- 
lass V.  HUl,  29  Kan.  527;  Houck  v,  Gue,  30  Xeb.  113,  46  N.  W.  280.  —  Fd. 


.'^' 


352  TRIAL 

THE   COBB   CHOCOLATE  COMPANY  v.   KNUDSON. 
Supreme  Court  of  Illinois.     1904. 

[Reported  207  Illinois,  452.] 

This  is  an  action  of  trespass  on  the  case  by  appellee,  plaintiff 
below,  against  appellant,  a  corporation,  defendant  below,  in  the 
superior  court  of  Cook  county,  to  recover  damages  claimed  by 
appellee  for  injuries  sustained  by  him  on  September  15,  1899, 
while  working  for  appellant  in  its  chocolate  factory  in  the  city  of 
Chicago.  Appellee  was  injured  by  his  fingers  getting  caught  in  the 
uncovered,  revolving  cog-wheels  of  a  machine  at  and  about  which 
he  was  working.  Trial  was  had  before  a  jury,  resulting  in  a  verdict 
and  judgment  against  appellant  for  $2500,  which  judgment  was 
affirmed  by  the  Appellate  Court.  From  the  judgment  of  affirm- 
ance appellant  prosecutes  this  appeal.  .  .  . 

"  Ricks,  J.^  ...  Counsel  for  the  appellant  further  complain  that 
the  court  abused  its  discretion  in  limiting  the  appellant  to  thirty 
minutes  in  which  to  argue  the  case  before  the  jury.  There  were 
only  six  witnesses  —  three  on  each  side.  The  testimony  of  none 
of  these  witnesses  was  very  extended  and  that  of  some  of  them  was 
very  brief.  We  cannot  say  that  the  discretion  of  the  trial  judge, 
under  such  circumstances,  was  abused,  nor  perceive  that  the  rights 
of  appellant  were  unduly  prejudiced  by  the  rule.  .  .  . 

Judgment  affirmed.^ 


? 


THE  NEW  YORK  AND   LONG  BRANCH   RAILROAD 
\i  COMPANY  ?;.    GARRITY. 

^  Supreme  Court  of  New  Jersey.     1899. 

[Reported  63  New  Jersey  Law,  50.] 

Gummere,  J.  In  disposing  of  this  writ  of  error  it  will  be  neces- 
sary to  consider  but  one  of  the  exceptions  taken  at  the  trial, 
namely,  whether  the  ruling  of  the  court  with  relation  to  the  open- 
ing and  reply  in  the  summing  up  to  the  jury  was  erroneous. 

1  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 

Ed. 

2  For  cases  in  which  Umitations  of  time  were  upheld  as  a  proper  exercise  of 
the  trial  court's  discretion,  see  1  Thompson,  Trials,  2d  ed.,  sec.  924;  2  Encyc.  of 
PI.  &  Pr.  702,  704. 

For  cases  in  which  limitations  of  time  were  held  an  abuse  of  the  trial 
court's  discretion,  see  1  Thompson,  Trials,  2d  ed.,  sec.  925;  2  Encyc.  of  PL  & 
Pr.  703.  —  Ed. 


NEW   YORK    AND    LONG    BR.\NCH    RAILROAD    CO.  V.  GARRITY       353 

The  question  arose,  as  appears  by  the_biU  of  exceptions,  in  this_       «d^      ^ 
way:    After  tlie^testimony"  on  both^  sides  had  been  closed,  the   k^  \->     j/( 
defendant's  counsel  requested  an  opening  from  the  plaintiff^  where- 
upon  "  plaintiff's  counsel  made  a  few  remarks  in  opening  the  case."  V'    v    ■*     j* 
Defendant's  counsel  objected  to  the  opening  as  being  insufficient,  ^    /  (y^ 
and  stated  that,  if  that  was  all  that  plaintiff  had  to  say,  he  had  no  y  ^\^ 
reply  to  make.     Plaintiff's  counsel  then  proceeded  "  to  sum  up  the    M^ 
case,"  to  which  defend;>nt's  counsel  objected  on  the  ground  that, 
as  he  had  not  answered  the  opening  argument  there  was  nothing  for 
plaintiff  to  reply  to.      The  court,  however,  permitted  plaintiff's 
counsel  to  proceed  with  his  second  argument  notwithstanding  the 
objection.     At  its  close  defendant's  counsel  asked  to  be  permitted 
to  reply  to  it.     This  request  was  refused  by  the  court  and  to  this 
ruling  exception  was  taken  and  sealed. 

We  think  that  in  this  refusal  there  was  error.  Ordinarily  a 
plaintiff  who  makes  a  mere  nominal  opening  does  so  at  his  peril 
and,  if  the  defendant  then  submits  his  case  A\dthout  argument,  the 
plaintiff  will  not  be  allowed  to  make  ;i  second  argument.  But, 
although  this  is  the  customary  practice,  it  is  always  within  the 
discretion  of  the  court,  when  such  a  case  arises,  to  permit  the  mak- 
ing of  a  second  argument  by  the  plaintiff,  or  rather,  to  state  it  more 
accurately,  to  make  a  fuller  and  more  complete  opening;,^ and  such 
pprmission_will  usually__be  granted  when  it  appears  tjiajt .plaintiff 
Jiaa_beenledinto  making  merely  a  formal  opening^y  .the,  action  of 
_the  defendant.  When  a  second  and  more  extended  opening  is 
permitted,  however,  the  defendant  is  entitled  to  reply  to  it  if  he  so 
desires,  and  if  he  does  so,  the  plaintiff  then  has  a  right  to  make  the 
closing  argument. 

The  refusal  of  the  court  to  permit  the  defendant's  counsel  to 
reply  to  tlie  enlartied  opening  of  the  plaintiff  deprived  him  of  a 
3Ab.stanti;ji,j-iglit,  and  the  judgment  below  should  therefore  be   , 
reversed.^     ■   ,  JT^J 

1  See  Hackney  v.  Del.  &  Atl.  Tel.  Co.,  69  N.  J.  L.  335,  55  Atl.  252.  But 
see  Barden  v.  Briscoe,  36  Mich.  254.  Compare  Brown  v.  Swineford,  44  Wis. 
282,  28  .\m.  Rep.  582.  —  Ed. 


354 


TRIAL 


MARRIAGE  v.   ELECTRIC   COAL   COMPANY. 
Appellate  Court  of  Illinois,  Third  District.     1912. 

[Reported  17G  Illinois  Appellate  Court  Reports,  451.] 
Thompson,  P.  J,      This  is  a  suit  brought  by  Henry  Marriage_ 


Ol 


against  the  Electric  Coal  Company  to  recover  damages  for  personal 
injuries  alleged  to  have  been  sustained  by  him  while  he  was  in  its 
employ  as  a  coal  miner.  The  declaration  contains  several  counts, 
some  alleging  that  the  defendant  wilfully  failed  to  comply  with 
section  21  of  the  Mines  and  Miners  Act,  and  others  that  the  defend- 
\  ant  was  guilty  of  common-law  negligence.  The  plaintiff  recovered 
O'^'a  verdict  and  judgment  for  $3,000.     The  defendant  appeals. 

The  evidence  shows  that  plaintiff  was  injured  on  February  4, 
1911;  that  within  two  or  three  hours  after  he  was  injured,  his 
family  called  a  surgeon  to  examine  and  treat  him;  that  all  that 
surgeon  discovered  was  that  plaintiff  was  suffering  pain  from 
bruises  about  the  hip,  there  was  neither  any  swelling  nor  any  indi- 
cations of  a  fracture  or  dislocation;  the  next  morning  the  surgeon 
went  to  further  examine  or  treat  him  but  was  told  the  family  did 
ot  want  him,  that  they  had  got  another  physician.  The  evidence 
does  not  diclose  that  any  other  physician  was  ever  called  to  treat 
plaintiff,  although  he  now  claims  that  his  hip  was  fractured  and 
dislocated.  The  evidence  leaves  the  question  of  the  extent  of 
^  plaintiff's  injury  in  great  doubt.      To  justify  the  amount  of  the 

v^  damages  awarded,  the  injury  must  have  been  serious  and  per- 
manent in  character;  if  the  injury  was  slight  then  the  damages 
awarded  are  excessive. 

In  the  final  argument  to  the  jury  by  plaintiff's  counsel,  the 
statement  was  made  that  "  Hartshorn  Brothers  are  not  here  to- 
^dsij,  they  were  not  here  yesterday";  objection  was  made  to  this 
\^^j^  statement  of  counsel,  the  plaintiff's  counsel  proceeded  "  they  are 
not  taking  any  interest  in  the  case";  objection  was  again  made 
and  counsel  was  admonished  by  the  court  to  confine  himself  to  the 
evidence;  counsel  proceeded  "  I  will  say  this  about  it;  it  is  no 
more  unreasonable  in  this  case  that  we  did  not  call  Mr.  Marriage's 
brother  than  that  they  did  not  call  the  Hartshorn  Brothers  to  show 
they  were  complying  with  the  law  in  this  case"  ;  objection  was 
again  made  to  the  remarks  and  counsel  continued  "  Why,  no.  He 
argued  why  we  did  n't  call  this  man's  brother.  Why  did  n't  they 
call  the  Hartshorn  Brothers  ?  " 


rV^ 


x^ 


MARRIAGE    V.    ELECTRIC    COAL    COMPANY  355 

At  another  time  counsel  read  section  21  of  the  Mines  and  Miners 
Act.  Objection  was  made,  and  then  counsel  continued,  "  Why 
doesn't  he  want  me  to  read  that  law  to-day  ?  Because  his  com- 
pany violated  it;  "  objection  was  sustained  to  this  remark  and 
counsel  continued,  "  Well,  Mr.  Troup  is  very  technical  here  this 
morning  about  this  argument.  He  seems  to  be  afraid  to  let  me 
argue  this  case." 

The  record  shows  that  plaintiff  made  an  offer  to  exhibit  his  leg 
to  the  jury  and  counsel  for  defendant  objected  to  this  demon- 
strative evidence.  The  court  said  it  would  be  better  to  have  the 
description  of  the  injury  in  the  record  in  words  if  it  could  be  done. 
Counsel  for  plaintiff  in  final  argument  commented  on  the  objection 
of  defendant  to  this  offer  of  evidence,  and  why  the  leg  was  not 
exhibited  to  the  jury;  objection  was  made  and  sustained  to  this 
line  of  argument;  counsel  then  proceeded  to  argue,  "  why  did  n't 
they  call  the  company  doctor  ?  "  There  is  no  evidence  in  the 
record  tending  to  show  that  the  company  physician  ever  saw  the 
plaintiff.  Counsel  again  commented  on  the  ruling  regarding 
the  exhibition  of  plaintiff's  leg  and  got  into  another  colloquy  Avith 
the  court. 

Without  reviewing  the  merits  of  the  case  for  the  reason  that  on 
another  trial  there  may  be  additional  evidence,  it  is  sufficient  to  say 
the  evidence  is  very  conflicting,  and  of  such  a  nature  that  improper 
conduct  of  counsel  requires  a  reversal. 

Hartshorn  Brothers  referred  to  by  counsel  for  appellee  may  have 
had  some  interest  in  the  mine  as  stockholders,  but  there  is  nothing 
in  the  case  showing  that  they  had  any  personal  knowledge  of  how 
plaintiff  was  injured,  but  plaintiff's  brother  was  with  him  in  the 
mine  at  the  time  he  was  injured  and  knew  about  the  circumstances 
under  which  he  was  injured.  Comment  on  the  absence  of  wit- 
nesses related  to  the  parties  to  the  suit,  who  are  shown  to  have 
knowledge  of  the  case,  was  proper  but  comment  concerning  the 
absence  of  parties  not  shown  to  know  anything  about  the  case  was 
not  permissible  and  was  only  made  for  the  purpose  of  appealing 
to  the  prejudice  of  the  jury. 

The  court  had  not  permitted  plaintiff  to  exhibit  his  leg  to  the 
jury.  The  conduct  of  counsel  in  arguing  to  the  jury  the  propriety 
of  this  ruling  and  the  effect  of  such  evidence,  which  was  not  before 
the  jury',  was  improper  and  unprofessional.  Chicago  &  M.  Elec. 
R.  Co.  V.  Judge,  135  111.  App.  377;  Parlin  &  Orendorff  Co.  v.  Scott, 
137  111.  App.  454;  Turner  v.  Lovington  Coal  Min.  Co.,  156  111. 
App.  60.     Counsel  not  only  argued  to  the  jury  the  effect  of  evidence 


356  TRIAL 

not  before  it  under  the  ruling  of  the  court,  but  disregarded  the 
ruling  of  the  court  on  the  propriety  of  his  argument  by  in  sub- 
stance repeating  what  the  court  had  held  to  be  improper. 
-  In  civil  cases  the  law  is  given  to  the  jury  by  the  court,  and  while 
counsel  have  the  right  to  present  their  view  of  the  law  in  argument, 
they  have  no  right  to  read  from  law  books  to  the  jury.  Counsel  for 
appellee  in  this  case  not  only  read  law  to  the  jury,  but  after  objec- 
tion was  made  to  such  improper  conduct,  deliberately  disregarded 
the  ruling  of  the  court  by  commenting  on  the  motives  of  opposing 
counsel  making  the  objection,  who  were  strictly  within  their  legal 
rights.  The  conduct  of  counsel  was  a  violation  of  the  rules  of 
practice  and  a  wilful  defiance  of  the  ruling  of  the  court.  City  of 
Chicago  V.  McGiven,  78  111.  347. 

The  unwarranted  argument  of  counsel  for  appellee  undoubtedly 
greatly  influenced  the  jury  in  plaintiff's  favor  and  the  judgment 
must  be  reversed  because  of  such  unprofessional  conduct.  The 
judgment  is  therefore  reversed  and  the  cause  remanded. 

Reversed  and  remanded.^ 


Section  VIII. 

Instructions  to  the  Jury. 

SMITH  V.   CRICHTON. 

Court  of  Appeals  of  Maryland.     1870. 

[Reported  33  Maryland,  103.] 

Stewart,  J.^  Exceptions  have  been  taken  by  the  appellant  in 
this  case  to  the  ruling  of  the  Court  below,  in  the  refusal  to  grant  his 
three  several  prayers,  and  to  the  verbal  instructions  given,  includ- 
ing the  form,  as  well  as  the  substance  of  them.  .  .  . 

The  exception  as  to  the  form  of  the  instruction,  being  verbal, 
when  the  defendant's  prayers  were  in  writing,  cannot  be  supported. 

1  See  People  v.  McMahon,  244  111.  45,  91  N.  E.  104;  Bullard  v.  Boston  & 
M.  R.  R.,  64  N.  H.  27,  5  Atl.  838,  10  Am.  St.  Rep.  367;  City  of  Shawnee  v. 
Sparks,  26  Okla.  665,  110  Pac.  884;  Brown  v.  Swineford,  44  Wis.  282,  28  Am. 
Rep.  582;   1  Thompson,  Trials,  2d  ed.,  sees.  955-1010. 

As  to  the  propriety  of  arguing  questions  of  law  to  the  jury  in  criminal  cases 
see  1  Thompson,  Trials,  2d  ed.,  sees.  940-951.  —  Ed. 

^  The  statement  of  facts  is  omitted  together  with  a  part  of  the  opinion  in 
which  the  refusal  to  give  instructions  requested  by  the  defendant  was  held 
erroneous.  —  Ed. 


GARDNER   V.    PICKET  357 

Where  the  instruction  is  definite,  and  contains  sound  views  of 
the  law  apphcable  to  the  case  and  intelHgible  to  the  jury,  it  can 
make  no  essential  difference  whether  it  is  communicated  to  them 
in  writmg  or  orally.  ' 

It  is  true,  that  in  the  trial  of  causes,  and  the  exposition  of  the 
law  to  the  jury,  the  reduction  of  the  instruction  to  writing  is  cer- 
tainly more  formal,  less  liable  to  hasty  error,  and  may  enable  the 
Court  the  better  to  mature  their  views,  and  more  distinctly  and 
formally  to  express  them  to  the  jury  as  a  general  rule;  but  still  the 
law  may  be  sufficiently  expounded  to  the  jury  through  oral  instruc- 
tions. No  doubt  the  Court  would  not  hesitate,  where  it  was 
requested,  and  deemed  by  the  counsel  to  be  material,  to  embody 
their  views  in  writing,  in  advance  of  any  oral  communication  to  the 
jury.  This  matter,  however,  is  left  to  the  sound  discretion  of  the 
court  below,  and  is  not  the  subject  of  review  by  this  court. 

When  verbal  instructions  are  given  to  the  jury,  it  is  certainly  the 
right  of  the  party  who  desires  to  except  thereto,  to  have  them 
reduced  to  writing,  so  that  they  may  be  reviewed  on  appeal,  as 
was  done  in  the  present  instance;  and  when  that  is  the  case  it  is  no 
good  cause  of  complaint,  that  the  Court,  in  its  discretion,  chose  in 
the  first  instance  to  instruct  the  jury  orally.^ 


GARDNER  v.   PICKET. 

Supreme  Court  of  New  York,     1838. 

[Reported  19  Wendell,  186.] 

Motion  for  a  new  trial,  on  the  grounds  that  the  verdict  rendered 

for  the  defendant  was  against  evidence,  and  for  errors  in  the  "  ■       ,  jj^ 

charge  of  the  judge  to  the  jury.     In  the  course  of  the  charge,  the  ^yiP^      I 

judge  remarked,  as  to  a  particular  fact  in  the  case,  that  in  his  j       \'dji* 


'^li 


i^ 


opinion  there  was  not  sufficient  evidence  to  establish  the  fact,  butw^^ 
he^Lmitted  tTie  question  to  the  jury,  and  instructed  them  to\\ 
consider  the  whole  evidence  in  relation  to  it  and  to  decide  as  they 
should  find.     This  part  of  the  charge  of  the  judge  was  objected 
to.2  .  .  . 

^  In  some  states  statutes  require  the  instructions  to  be  in  writing  when  this 
is  requested  by  eitlier  jiarty;  in  some  states  they  must  be  in  writing  even  in  the 
absence  of  a  request.     See  1  Blashfield,  Instructions  to  Juries,  sec.  118.  —  Ed. 

*  The  part  of  the  opinion  on  this  point  only  is  given.  —  Ed. 


/>V 


-^^^a^ 


358  TRIAL 

Bij  the  Court,  Cowen,  J.  The  judge's  charge  that  there  was  not 
sufficient  proof  to  show  an  assignment  of  the  judgment  to  Wood 
was  a  mere  expression  of  opinion  on  the  fact,  which  he  still  left  to 
the  jury.  He  had  a  right  to  give  such  an  opinion,  especially  with_ 
such  a  qualification.  Solarte  v.  Melville,  1  Mann.  &  Ryl,  198,  is  in 
point.     7  Barn.  &  Ores.  430,  S.  C.  .  .  . 

New  trial  denied} 


SIMMONS  V.  UNITED  STATES. 
Supreme  Court  of  the  United  States.     1891. 

[Reported  142  Ujiited  States,  148.] 

This  was  an  indictment  on  section  5209  of  the  Revised  Statutes 
for  aiding  and  abetting  one  Claassen  in  embezzling  and  misapply- 
ing the  funds  of  a  certain  national  bank  in  the  city  of  New  York. 
The  defendant  pleaded  not  guilty.  .  .  . 

The  case  was  then  tried,  and  was  submitted  by  the  judge  to  the 
jury  on  March  10  under  instructions  beginning  as  follows:  "  I 
have  the  right,  under  the  laws  of  the  United  States,  to  give  you  my 
opinion  on  questions  of  fact,  but  I  refrain  from  doing  so  because  I 
am  well  satisfied  of  your  capacity  to  understand  what  has  been 
testified  to  in  all  these  days  that  we  have  been  here  engaged.  I 
shall  confine  myself  to  stating  to  you  the  law  by  which  you  are 
bound,  simply  calling  your  attention  to  the  questions  of  fact  which 
are  to  be  decided  by  you,  for,  as  you  know,  juries  decide  questions 
of  fact,  and  not  the  court." 

On  the  next  day  the  jury  came  into  court  and  asked  to  be  dis- 
charged from  further  consideration  of  the  case.  To  this  request 
the  court,  after  ascertaining  by  inquiry  that  the  jury  required  no 
further  instructions  in  matter  of  law,  replied  as  follows:  "  This 
case  has  occupied  a  long  time.  It  is  a  case  of  importance,  and  the 
discharge  of  the  jury  at  this  time  would  involve  another  trial.  It 
seems  to  me  that  that  should  not  be  had  unless  in  a  case  of  neces- 
sity. I  see  in  this  case  no  such  necessity.  I  cannot  understand  the 
failure  to  agree  arises  from  any  difference  of  opinion  based  upon  the 
insufficiency  of  the  evidence  in  this  case.  Whenever  in  the  opinion 
of  the  court  the  testimony  is  convincing,  it  is  the  duty  of  the  court 

»  Davidson  v.  Stanley,  2  Man  &  Gr.  721,  3  Scott  N.  R.  49;  Smith  v.  Dart  & 
Son,  14  Q.  B.  D.  105;  Grotty  v.  Danbury,  79  Gonn.  379,  65  Atl.  147;  Foley  v 
Loughran,  60  N.  J.  L.  464,  38  Atl.  960,  accord.     See  38  Cyc.  1040.  —  Ed. 


ALLIS   V.   LEONARD 


359 


to  hold  the  jury  together.     Therefore  I  must  dechne  your  request 
to  be  discharged." 

The  defendant  excepted  to  the  judge's  statement  to  the  jury 
that  he  regarded  the  testimony  as  convincing,  and,  being  found 
guilty  and  sentenced  to  imprisonment  for  six  years  in  a  peni- 
tentiary, tendered  a  bill  of  exceptions,  which  was  allowed  by  the 
j  udge,  and  sued  out  this  writ  of  error. 

Gray,  J.^  .  .  .  The  only  other  exception  argued  is  to  the  state- 
ment made  by  the  judge  to  the  second  jury,  in  denying  their 
request  to  be  discharged  without  having  agreed  upon  a  ver- 
dict, that  he  regarded  the  testimony  as  convincing.  But 
at  the  outset  of  his  charge  he  had  told  them,  in  so  many 
words,  that  the  facts  were  to  be  decided  by  the  jury,  and 
not  by  the  court.  And  it  is  so  well  settled,  by  a  long 
series  of  decisions  of  this  court,  that  the  judge  presiding  at  a 
trial,  civil  or  criminal,  in  any  court  of  the  United  States,  is  author- 
ized, whenever  he  thinks  it  will  assist  the  jury  in  arriving  at  a  just 
conclusion,  to  express  to  them  his  opinion  upon  the  questions  of 
fact  which  he  submits  to  their  determination,  that  it  is  only  neces- 
sary to  refer  to  two  or  three  recent  cases  in  which  the  judge's 
opinion  on  matters  of  fact  was  quite  as  plainly  and  strongly  ex- 
pressed to  the  jury  as  in  the  case  at  bar.  Vicksburg  &c.  Railroad 
V.  Putnam,  118  U.  S.  545;  United  States  v.  Philadelphia  &  Reading 
Railroad,  123  U.  S.  113;  Lovejoy  v.  United  States,  128  U.  S.  171. 

Judgment  affirmed.^ 


ALLIS   V.   LEONARD  e^aL 
Court  of  Appeals  of  New  York,     1874. 
[Reported  58  New  York,  288.] 

Appeal  by  defendants  Stevens  and  Hathaway  from  judgment 
of  the  General  Term  of  the  Supreme  Court  in  the  third  judicial 
department,  affirming,  as  to  them,  a  judgment  in  favor  of  plaintiff 
entered  upon  a  verdict,  and  affirming  an  order  denying  a  motion 
for  a  new  trial. 

This  was  an  action  upon  a  promissory  note.     The  defence  was 

*  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 

*  The  federal  courts  are  not  bound  to  follow  the  state  practice  as  to  instruc- 
tions.    Nudd  V.  Burrows,  91  U.  S.  426,  23  L.  ed.  286.  —  Ed. 


360  TRIAL 

payment.  Plaintiff  was  called  as  a  witness  and  gave  testimony  in 
his  own  behalf. 

Defendants  called  two  witnesses  who  testified,  in  substance,  that 
they  knew  plaintiff's  reputation  and  that  it  was  bad. 

The  court  charged  the  jury,  among  other  things,  as  follows: 

"  You  have  the  plaintiff's  evidence,  to  which  you  are  to  give  such 
Of  edit  as  you  think  it  entitled;  and  allow  me  to  say,  before  the 
consideration  of  the  evidence,  that  the  impeachment  or  attempted 
impeachment  of  the  plaintiff  has  entirely  failed.  It  has  not  af- 
fected his  credit,  but  yet  the  credit  of  the  witness  is  always  in  the 
hands  of  jurors,  and  they  are  to  give  such  credit  to  each  one  as 
they  are  entitled  to.  You  are  to  look  at  the  witness  on  the  stand 
and  observe  the  evidence  he  gives,  and  the  probability  of  the  story 
he  relates,  and  the  consistency  of  the  statement  he  makes,  and  his 
apparent  candor  and  frankness  and  his  interest  in  the  case.  All 
these  things  you  will  take  into  consideration  in  determining  his 
credit.  You  will  take  into  consideration  such  evidence  as  tends  to 
impeach  —  for  instance,  if  his  statements  out  of  court  are  incon- 
sistent with  his  evidence  in  court,  it  is  proper  for  your  considera- 
tion in  determining  the  credit  due  him  as  a  witness;  and  it  is  proper 
for  you  to  consider  the  credit  to  be  given  to  the  plaintiff  and  all  the 
different  witnesses  called  upon  the  stand.  You  are  to  determine 
who  has  told  the  truth  and  what  the  truth  of  this  transaction  is." 

The  defendant  excepted  to  so  much  of  the  charge  as  is  in  the 
words  following: 

"  That  the  impeachment  or  attempted  impeachment  of  the 
plaintiff  has  entirely  failed;  it  has  not  affected  his  credit." 

Church,  Ch.  J.  Two  witnesses  gave  evidence  tending  to  show 
that  the  plaintiff's  general  character  was  bad.  This  evidence  though 
not  very  strong,  was  legitimate  upon  that  question.  The  judge 
charged  the  jury,  "  that  the  impeachment,  or  attempted  impeach- 
ment of  the  plaintiff,  has  entirely  failed;  it  has  not  affected  his 
credit,"  etc.,  which  was  specifically  excepted  to.  I  can  see  no 
sufficient  answer  to  the  point  that  this  w^as  error.  The  evidence 
was  competent,  and  whether  strong  or  weak,  should  have  been 
submitted  to  the  jury  for  their  consideration,  upon  the  credibility 
of  the  witness.  Three  answers  have  been  suggested:  First,  that 
other  portions  of  the  charge  neutralized  the  effect  of  this  clause. 
It  is  true  that  the  learned  judge  told  the  jury  that  the  credibility 
of  the  witness  was  a  question  for  them,  but  we  think  the  fair  con- 
struction of  all  he  said  about  it  was  to  instruct  them  that,  in  passing 
upon  the  credibility  of  the  witness  they  nmst  exclude  from  con- 


ALLIS   V.    LEONARD  361 

sideration  the  element  of  general  bad  character,  sought  to  be  proved 
by  the  two  witnesses  called,  and  the  jury  must  have  so  understood 
it.  Second,  it  is  said  that,  at  most,  it  was  but  an  expression  of 
opinion  or  commentary  upon  the  facts  which  is  not  the  subject 
of  a  legal  exception.  This  is  not  tenable.  It  was  more  than  an 
opinion  or  commentary;  it  was  a  decision  or  instruction  that  the 
evidence  adduced  was  not  sufficient  to  be  considered  by  them, 
that  it  was  a  failure,  and  did  not  affect  the  credit  of  the  witness. 
This  was  an  instruction  in  the  form  and  substance  of  law.  There 
are  cases  holding  that  a  mere  opinion  or  commentary  upon  the 
facts  is  not  the  subject  of  an  exception,  but  in  such  cases  it  is  held 
that  the  judge  must  accompany  such  commentary  with  explicit 
instructions  that  it  is  the  duty  of  the  jury,  notwithstanding,  to 
consider  the  evidence  and  decide  as  they  think  the  truth  requires. 
(19  Wend.  186;  42  Barb.  326.)  To  be  free  from  legal  objection 
it  must  be  advisory  merely,  and  must  not  be  put  in  the  form  of  a 
direction  as  matter  of  law.  (21  Wend.  509-525.)  The  jury  is 
the  constitutional  tribunal  for  the  determination  of  questions  of 
fact;  and  I  am  persuaded  that  justice  is  better  administered  when 
courts  refrain  altogether  from  any  interference  with  its  rightful 
province.  Jurors  cannot  distinguish  between  a  direction  in  a  mat- 
ter of  law  or  fact.  They  are  bound  to  take  the  law  from  the  court; 
and  a  positive  direction  from  the  bench,  as  to  a  question  of  fact, 
is  as  potent  as  if  it  pertained  to  a  question  of  law;  and  even  an 
expression  of  opinion  calculated  to  influence  the  decision  of  the 
jury  in  a  matter  clearly  within  their  cognizance,  should  be  critically 
scrutinized.  In  this  case  the  direction  was  unqualified,  as  we 
construe  the  charge.  Third,  it  is  claimed  that  the  exception  is  not 
available,  because  no  request  was  made  to  submit  the  question  to 
the  jury.  The  rule  invoked  does  not  apply.  There  was  no  neces- 
sity for  a  request;  the  court  had  made  a  distinct  ruling  that  the 
attempted  impeachment  was  a  failure,  which  as  we  have  seen  was 
error,  and  the  defendant  excepted.  This  was  all  that  was  neces- 
sary to  protect  the  defendant's  rights.  We  cannot  of  course 
speculate  as  to  whether  this  error  had  any  effect  upon  the  result 
or  not.  We  are  not  permitted  to  consider  that  question.  The 
error  is  one  which  camiot  be  overlooked  without  establishing  a 
dangerous  precedent. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered,  costs 
to  abide  the  event. 

All  concur.  Judgment  reversed. 


& 


362  TRIAL 

COMMONWEALTH   v.   BARRY. 
Supreme  Judicial  Court  of  Massachusetts.     1864. 
[Reported  9  Allen,  276.] 

Indictment  for  keeping  and  maintaining  a  tenement  in  School 
Street  in  Boston,  used  for  the  illegal  sale  and  illegal  keeping  for 
sale  of  intoxicating  liquors. 

At  the  trial  in  the  superior  court,  before  Vose,  J.,  all  the  wit- 
nesses were  policemen,  two  of  them  being  officers  whose  daily  beat 
included  School  Street.  The  defendant's  counsel,  in  his  argument 
to  the  jury,  commented  with  some  severity  upon  their  testimony, 
as  the  testimony  of  policemen.  The  judge  in  his  charge  told  the 
jury  that  the  same  rules  were  applicable  to  policemen  as  to  all 
other  witnesses,  in  determining  the  credit  to  be  given  to  their 
testimony;  that  in  very  many  of  the  cases  which  had  been  tried 
at  the  present  term  of  the  court  policemen  had  been  the  principal 
witnesses,  and  he  thought  the  jury  would  agree  with  him  in  the 
opinion  that  in  all  these  cases  they  had  manifested  great  intelli- 
gence, and  testified  with  apparent  candor  and  impartiality. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions. 

Bigelow,  C.  J.  Upon  mature  consideration  we  have  come  to 
the  conclusion  that  we  cannot  give  our  sanction  to  the  instructions 
under  which  this  case  was  submitted  to  the  jury.  Viewed  in 
either  of  the  two  aspects  of  which  they  are  susceptible,  it  appears 
to  us  that  they  cannot  be  supported,  consistently  with  the  rules  of 
law. 

If  they  are  to  be  regarded  only  as  an  expression  of  opinion  by 
the  court  concerning  the  crediljility  of  certain  witnesses  who  had 
testified  in  other  cases  than  the  one  on  trial,  they  were  clearly  of  a 
nature  to  mislead  the  jury.  The  implication  from  the  language  of 
the  court  is  direct  and  positive,  that  the  jury  might  properly  infer 
that  the  witnesses  in  support  of  this  prosecution  were  entitled  to 
credit  for  the  reason  that  other  persons  engaged  in  the  same  occupa- 
tion had  testified  with  candor  and  impartiality  in  the  trial  of  other 
cases.  The  objection  to  this  instruction  is  twofold.  In  the  first 
place,  it  authorized  the  jury  to  draw  an  inference  which  was  not  a 
legitimate  deduction  from  the  premises.  It  by  no  means  follows 
naturally  or  logically  that  witnesses  employed  in  the  same  or 
similar  occupations  will  testify  on  all  occasions  with  equal  fairness 


COMMONWEALTH    V.    BARRY  363 

and  impartiality.  In  the  next  place,  the  instructions  gave  the 
jury  to  understand  that  they  might  travel  beyond  the  case  as 
proved  before  them,  to  seek  for  corroboration  and  support  of  the 
testimony  adduced  in  behalf  of  the  prosecution  in  facts  which  not 
only  were  not  proved  but  which  could  not  have  been  properly 
offered  in  evidence  by  the  government.  Nor  is  this  the  whole 
extent  of  the  objection.  The  facts  thus  introduced  into  the  case 
were  submitted  to  the  jury  with  a  distinct  expression  of  opinion 
by  the  court  as  to  the  effect  to  be  given  to  them,  at  a  stage  of  the 
trial  when  the  defendant  could  not  controvert  them,  and  without 
any  opportunity  being  given  to  his  counsel  to  address  the  jury  on 
the  weight  which  was  due  to  them.  Such  a  course  of  proceeding  is 
certainly  unusual,  and,  as  we  think,  does  not  accord  with  the  due 
and  orderly  conduct  of  a  criminal  trial. 

But  in  another  aspect  it  seems  to  us  that  the  instructions  were 
objectionable.  The  credibility  of  the  witnesses  who  had  testified 
in  support  of  the  charge  in  the  indictment  was  a  fact  which  it  was 
the  exclusive  province  of  the  jury  to  determine.  As  essentially 
affecting  their  bias,  and  the  credit  to  be  given  to  their  testimony, 
their  occupation  and  connection  with  the  origin  of  the  prosecution 
against  the  defendant  might  be  important  elements,  and,  within 
proper  limits,  proper  subjects  of  comment  by  counsel, and  of  consid- 
eration by  the  jury.  If  the  instructions  are  to  be  construed,  as  we 
think  they  fairly  may  be,  as  the  expression  of  the  opinion  of  the 
court  on  the  degree  of  credit  to  which  these  witnesses  were  entitled, 
the  court  exceeded  its  authority  in  stating  such  opinion  to  the  jury. 
By  Gen.  Sts.  c.  172,  §  15,  the  duty  of  charging  the  ]Vivy  in  criminal 
cases  is  specially  enjoined  upon  the  court.  By  Gen.  Sts.  c.  115, 
§  5,^  which  is  applicable  alike  to  civil  and  criminal  trials,  the  rule 
is  prescribed  by  which  courts  are  to  be  guided  in  the  performance 
of  this  duty.  It  must  be  admitted  that  this  provision  of  the  statute 
is  not  expressed  in  terms  which  are  free  from  ambiguity.  But 
although  there  is  a  seeming  repugnancy  in  the  two  branches  of  the 
section,  we  think  that  they  are  susceptible  of  a  reasonable  inter- 
pretation, which  will  give  full  force  and  effect  to  both  of  them,  and 
at  the  same  time  carry  out  what  seems  to  have  been  the  manifest 
purpose  of  the  legislature.  It  is  clear  beyond  controversy,  that 
the  first  clause  contains  a  distinct  and  absolute  prohibition,  that 
the  "  courts  shall  not  charge  juries  with  respect  to  matters  of  fact." 

'  This  statute  is  as  follows:  "The  courts  shall  not  charge  juries  with  respect 
to  matters  of  fact,  but  may  state  the  testimony  and  the  law." 


364  TRIAL 

To  reconcile  this  with  the  clause  that  follows,  which  provides  that 
the  courts  "  may  state  the  testimony  and  the  law,"  the  prohibition 
must  be  regarded  as  a  restraint  only  on  the  expression  of  an  opinion 
by  the  court  on  the  question  whether  a  particular  fact  or  series  of 
facts  involved  in  the  issue  of  a  case  is  or  is  not  established  by  the 
evidence.  In  other  words,  it  is  to  be  construed  so  as  to  prevent 
courts  from  interfering  with  the  province  of  juries  by  any  state- 
ment of  their  own  judgment  or  conclusion  upon  matters  of  fact. 
This  construction  effectually  accomplishes  the  great  object  of 
guarding  against  any  bias  or  undue  influence  which  might  be 
created  in  the  minds  of  jurors,  if  the  weight  of  the  opinion  of  the 
court  should  be  permitted  to  be  thrown  into  the  scale  in  deciding 
upon  issues  of  fact.  But  further  than  this  the  legislature  did  not 
intend  to  go.  The  statute  was  not  designed  to  deprive  the  court 
of  all  power  to  deal  with  the  facts  proved.  On  the  contrary,  the 
last  clause  of  the  section  very  clearly  contemplates  that  the  duty 
of  the  court  may  not  be  fully  discharged  by  a  mere  statement  of 
the  law.  By  providing  that  the  court  may  also  state  the  testi- 
mony, the  manifest  purpose  of  the  legislature  was  to  recognize  and 
affirm  the  power  and  authority  of  the  court,  to  be  exercised  accord- 
ing to  its  discretion,  to  sum  up  the  evidence,  to  state  its  legal  effect 
and  bearing  on  the  issues,  and  to  indicate  its  proper  application 
under  the  rules  of  law. 

In  the  case  at  bar,  the  court  exceeded  the  limit  prescribed  by  the 
statute.  If  the  language  used  by  the  court  was  intended  to  be 
applicable  to  the  witnesses  who  had  testified  in  behalf  of  the  pros- 
ecution, it  was  an  expression  of  opinion  as  to  their  credibility. 
As  this  was  a  matter  of  fact,  within  the  exclusive  province  of  the 
jury  to  determine,  such  expression  of  opinion  went  beyond  a 
"  statement  of  the  testimony,"  and  trenched  on  prohibited  ground, 
being  a  charge  to  the  jury  "  with  respect  to  matters  of  fact." 

We  have  already  said  that  the  occupation  of  a  witness,  in  con- 
nection with  other  facts,  may  have  a  material  bearing  on  the 
credibility  of  his  testimony  in  a  particular  case.  But  we  feel 
bound  to  add  that  we  do  not  intend  to  express  an  opinion  on  the 
question  whether  in  the  case  at  bar  there  was  any  valid  ground  for 
calling  in  question  the  veracity  or  candor  of  the  witnesses  whom 
the  defendant's  counsel  sought  to  impeach.  No  such  point  seems 
to  have  been  raised  at  the  trial,  nor  are  the  facts  bearing  upon  it 
stated  in  the  exceptions.  The  inference  from  the  course  of  the 
trial,  especially  from  the  line  of  argument  which  the  counsel  for  the 
defendant  was  permitted  to  take,  and  from  the  instructions  to 


CHAPMAN  V.  Mccormick  365 

the  jury,  is,  that  the  ground  on  which  the  impeachment  of  the  wit- 
nesses was  placed  was  deemed  to  have  been  proper  matter  for 
the  consideration  of  the  jury.  Exceptions  sustained.^ 


CHAPMAN  V.  Mccormick. 

Court  of  Appeals  of  New  York.     1881. 

[Reported  86  New  York,  479.] 

Danforth,  J.  I  cannot  concur  in  the  conclusion  that  the 
learned  trial  court  did  not  err  in  refusing  to  permit  counsel  to  ask 
for  further  instructions  to  the  jury.  It  may  well  be  that  circum- 
stances other  than  those  noted  in  the  appeal  book  had  occurred 
during  the  trial,  and  which,  if  written  out,  would  justify  this  re- 
fusal; but  I  take  the  case  as  I  find  it.  At  the  close  of  the  testi- 
mony there  was  summing  up  bj'  counsel,  a  charge  to  the  jury,  and, 
as  the  record  shows,  they  "  having  risen  from  their  seats  and  about 
to  retire  in  charge  of  an  officer  to  deliberate  on  their  verdict,"  the 
defendant's  counsel  said:  "  Wait  one  moment,  please."  The  court, 
"  No;  I  will  not  add  to  my  charge  at  all;  "  and  addressing  the  jury 
said,  "  Go  on,  gentlemen."  Defendant's  counsel:  "  I  want  to  ask 
the  court  to  make  some  charge  to  the  jury."  The  court:  "  No; 
I  have  said  all  I  ought  to  say.  You  take  an  exception  ?  "  De- 
fendant's counsel:  "  Yes;  but  I  want  to  ask  the  court  to  charge 
the  jury  in  certain  respects.  I  claim  that  to  be  my  right,  your 
honor."  The  court:  "  I  refuse,  and  you  take  an  exception." 
The  respondent  states,  upon  his  printed  points,  "  an  opportunity 
to  make  requests  had  been  offered  and  had  not  been  availed  of." 
But  this  is  accompanied  by  no  reference  to  the  case,  and  a  careful 
examination  fails  to  disclose  the  occurrence.  The  effect  of  such  a 
fact,  had  it  existed,  need  not  be  considered.  Nor  was  the  refusal 
of  the  court  put  upon  that  ground.  The  request  of  the  counsel 
was  obviously  addressed  to  the  court,  and  not,  as  the  plaintiff 
urges,  to  the  jury,  for  the  reply  to  the  counsel  was:  "  I  will  not 
add  to  my  charge  at  all;  "  and  to  the  jury  the  court  said:  "  Go 
on."  All  this  time  the  jury  were  in  their  box,  having  merely  risen 
from  their  seats,  and  the  court  assumed  a  knowledge  of  the  reason 

1  For  a  list  of  the  states  in  wliieh  the  court  is  forbidden  to  charge  the  jury 
with  respect  to  matters  of  fact,  see  1  Blashfield,  Instructions  to  Juries,  sec.  46. 

In  some  states  the  judge  is  forbidden  even  to  sum  up  the  evidence.  See 
1  Blashfield,  Instructions  to  Juries,  sec.  54.  —  Ed. 


366  TRIAL 

for  the  request  of  counsel.  An  explicit  statement  of  it  followed. 
It  should,  I  think,  have  been  listened  to.  It  is  the  duty  of  counsel 
so  to  conduct  his  client's  cause  that  the  jury  may  have  the  facts 
before  them,  under  such  instructions  as  to  the  law  as  are  material 
to  the  case;  and  as  under  our  system  of  judicature  those  instruc- 
tions can  be  given  only  by  the  court,  it  would  seem  to  be  the  client's 
absolute  right  to  have  his  counsel  heard  concerning  them.  In  no 
other  way  can  the  suitor  have  the  benefit  of  the  machinery  of  the 
courts;  of  the  law  as  claimed  by  him  if  the  response  is  favorable, 
of  an  exception  for  review  if  it  is  refused.  The  right  may  be  for- 
feited by  the  omission  of  counsel  to  speak  in  time,  for  the  client  is 
bound  by  his  conduct,  and  as  to  that  the  court  has  a  large  discre- 
tion. Here  it  was  not  exercised.  The  jury  were  before  the  court, 
in  their  proper  places.  Its  ear  was  withheld  from  the  counsel,  not 
because  he  did  not  speak  in  season,  but  because,  anticipating  the 
object  of  counsel,  the  court  decided  to  deny  him.  It  may  be  that 
no  suggestion  would  have  changed  that  mind;  but  had  it  been 
heard,  the  defendant  would  have  had  either  the  benefit  of  an  excep- 
tion to  that  decision,  or  a  ruling  of  the  court  in  accordance  with  his 
views.  To  one  or  the  other  he  was  entitled;  and  it  was  beyond  the 
power  of  the  court  to  deprive  him  of  it.  As  a  trial  judge  is  bound 
to  instruct  the  jury  on  each  proposition  of  law  submitted  to  him  by 
counsel  bearing  upon  the  evidence  (Zabriskie  v.  Smith,  13  N.  Y. 
322;  Foster  v.  People,  50  id.  601),  so  it  must  be  a  legal  right  of 
counsel  to  submit  such  propositions  (Pennock  v.  dialogue,  2  Peters, 
15),  and  its  denial  by  the  court  a  subject  of  exception  and  review 
upon  appeal.  The  judge,  therefore,  erred  in  refusing  the  request 
of  counsel,  and  the  error  is  fatal  to  the  judgment,  unless  it  appears 
that  there  was  no  question  in  the  case  to  be  submitted  to  the  jury 
(People  V.  Gray,  5  Wend.  289) ;  or  that  the  request  came  too  late. 
Neither  fact  exists.  The  case  was  submitted  to  the  jury  as  one 
for  their  determination,  and  the  request  was  made  before  they  left 
their  seats,  and  before,  so  far  as  the  record  shows,  any  other  step 
had  been  taken.  That  one  was  to  be  taken,  i.  e.,  that  the  jury 
were  about  to  retire,  is  not  sufficient.  There  is  nothing  to  show 
that  counsel  did  not  seek  the  attention  of  the  court  as  soon  as 
possible  after  the  close  of  the  charge,  and  it  appears  affirmatively 
that  he  did  so  before  they  retired.  This  was  sufficient.  State  v. 
Catlin,  3  Vt.  530,  534. 

I  have  reached  this  conclusion  with  reluctance,  and  with  no 
disposition  to  interfere  witli  the  exercise  of  the  large  and  necessary 
discretion  intrusted  to  a  trial  judge.      But  a  right  valuable  to 


CHAPMAN    V.    MCCORMICK  367 

litigants  seems  to  have  been  denied;  and  for  this  reason  there 
should,  I  think,  be  a  new  trial. 

Miller,  J.  (dissenting).  .  .  .  An  exception  is  also  taken 
to  the  decision  of  the  judge  upon  the  trial  in  regard  to  the  requests 
to  charge  made  by  the  counsel  for  the  defendant.  At  the  time 
when  the  requests  were  presented,  the  jury  had  been  charged, 
risen  from  their  seats,  and  were  about  to  retire  in  charge  of  an 
officer  to  deliberate  upon  the  verdict,  and  the  judge  declined  to 
make  any  further  charge,  and  directed  the  jury  to  retire. 

The  orderly  proceedings  of  a  court  upon  a  trial  rest  very  much 
in  the  discretion  of  the  presidmg  judge,  and  miless  it  appears  that 
such  discretion  has  been  abused,  it  is  not  within  the  province  of  an 
appellate  tribunal  to  interfere  with  its  exercise.  The  usual  course 
upon  a  trial  is  to  hand  up  the  requests  to  the  judge  before  the 
charge  is  made,  and  at  most,  prior  to  the  time  when  the  jury  are 
ready  to  retire  in  charge  of  an  officer.  A  proper  degree  of  vigilance 
would  certainly  require  that  the  right  to  present  requests  should  be 
exercised  before  the  latter  contingency,  and  a  delay  beyond  this 
ordinarily  would  leave  it  for  the  judge  to  say  whether  he  would 
keep  or  call  the  jury  back  and  pass  upon  the  requests.  It  should 
not  be  overlooked,  that  it  does  not  appear  that  any  portion  of  the 
charge  as  made  was  excepted  to,  nor  what  additional  charge  was 
desired,  or  that  it  would  affect  the  disposition  of  the  case  in  any 
maimer.  The  counsel  stated  that  he  desired  the  judge  to  make 
"  some  charge  to  the  jury,"  and  to  charge  in  some  respects  without 
advising  what  he  desired,  or  showing  that  it  was  material.  Nor 
did  he  state  what  he  did  desire  m  this  respect,  as  he  should  have 
done  under  the  circumstances  presented.  We  are  not  prepared  to 
say  that  any  injustice  has  been  done,  or  that  there  was  any  such 
abuse  of  discretion  as  would  authorize  an  interference  with  the 
decision  of  the  judge  by  a  reversal  of  the  judgment. 

Rapallo,  Andrews,  Earl  and  Finch,  JJ.,  concur  with  Dan- 
FORTH,  J.     Folger,  Ch.  J.,  concurs  with  Miller,  J.,  dissenting. 

Judgment  reversed. 


368  TRIAL 

STUCKEY   V.   FRITSCHE. 
Supreme  Court  of  Wisconsin.     1890. 

[Reported  77  Wisconsin,  329.] 

Taylor,  J.^  .  .  .  After  the  counsel  had  argued  the. case  to  the 
jury,  the  learned  circuit  judge  gave  no  charge  or  instructions  to  the 
jury,  but  made  the  following  remark:  "  I  have  no  charge  to  give 
you,  gentlemen.  Conduct  the  jury  to  their  room."  No  excep- 
tion was  taken  at  the  time  by  the  learned  counsel  for  the  defendant 
to  the  declination  of  the  learned  judge  to  instruct  the  jury;  neither 
did  he  request  the  judge  to  instruct  them  generally,  nor  request 
that  any  specific  instruction  should  be  given  to  them.  On  making 
a  motion  for  a  new  trial,  the  learned  counsel  for  the  defendant 
assigTis  this  as  a  reason  for  granting  the  same,  in  the  following 
language,  as  his  ninth  reason:  "  The  court  erred  in  not  instructing 
the  jury  in  the  law  applicable  to  the  case."  The  learned  counsel 
for  the  appellant  claims  that  it  is  the  duty  of  the  trial  judge  to 
instruct  the  jury  in  every  case  upon  the  law  of  the  case,  whether 
requested  to  do  so  or  not;  and  he  cites  sec.  2853,  S.  &  B.  Ann. 
Stats. ,2  as  imposing  such  duty  upon  the  trial  judge.  We  are 
clearly  of  the  opinion  that  this  section  was  enacted  for  the  purpose 
of  requiring  the  instructions,  when  given,  to  be  given  in  writing, 
unless  the  giving  of  them  in  writing  was  waived  by  the  parties,  and 
was  not  enacted  for  the  purpose  of  making  it  the  duty  of  the  trial 
judge  to  instruct  the  jury  in  any  and  every  case.  This  was  so 
held  by  this  court  in  Hepler  v.  State,  58  Wis.  46,  49.  The  same 
rule  is  adopted  in  New  York.  Haupt  v.  Pohlmann,  1  Rob.  (N.  Y.), 
121 ;  Graser  v.  Stellwagen,  25  N.  Y.  315.  It  was  also  held  that  an 
exception  for  a  refusal  to  instruct  the  jury  as  requested  by  the  coun- 
sel must  be  taken  on  the  trial  in  order  to  be  available  to  the  party 
complaining  of  such  refusal.  Murphy  v.  Martin,  58  Wis.  276; 
Collins  V.  Shaimon,  67  Wis.  441;  Firmeis  v.  State,  61  Wis.  140; 
Adams  v.  McKay,  63  Wis.  404,  408;    Gardner  v.  Gooch,  48  Me. 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 

2  Sec.  2853,  S.  &  B.  Ann.  Stats.,  provides:  "  Upon  the  trial  of  every  action, 
the  judge  presiding  shall,  before  giving  the  same  to  the  jury,  reduce  to  writing 
and  give  as  written  his  charge  and  instructions  to  the  jury,  and  all  further  and 
particular  instructions  given  them  when  they  shall  return  after  having  once 
retired  to  deliberate,  unless  a  written  charge  be  waived  by  counsel  at  the  com- 
mencement of  the  trial;  and  except  that  the  charge  or  instructions  may  be 
delivered  orally  when  taken  down  by  the  official  phonographic  reporter  of  the 
court.  .  .  ."  —  Rep. 


CHICAGO    CITY   RAILWAY   COMPANY    V.    MAGER  369 

487.  We  think  it  very  clear  that  the  defendant  waived  any  right 
to  insist  upon  the  trial  judge  instructing  the  jury,  by  not  taking 
exception  to  his  declining  to  give  instructions.  Had  he  desired 
the  judge  to  instruct  the  jury,  he  should  have  either  made  a  general 
request  that  the  judge  instruct  the  jury  upon  the  law  of  the  case, 
or  have  offered  specific  instructions  and  requested  the  judge  to 
give  the  same  to  the  jury.  Having  done  neither  in  this  case,  he 
must  be  deemed  to  have  assented  to  submitting  the  case  to  the 
jury  without  instructions. 
By  the  Court.  —  The  judgment  of  the  circuit  court  is  affirmed.^ 


THE  CHICAGO   CITY   RAILWAY  COMPANY  v. 
MAGER. 

Supreme  Court  of  Illinois.     1900. 
[Reported  185  Illinois,  336.) 

BoGGS,  J. 2  The  only  alleged  errors  here  urged  are,  that  on  the 
hearing  of  this  cause,  which  was  an  action  on  the  case  by  appellee 
to  recover  damages  for  personal  injuries  alleged  to  have  been 
inflicted  through  actionable  negligence  on  the  part  of  the  appellant 
company,  the  trial  judge  erroneously  refused  to  give  to  the  jury 
instruction  No.  23  asked  by  appellant,  and  so  erroneously  framed 
an  instruction  given  by  the  court  on  its  own  motion  as  to  authorize 
the  rendition  of  a  verdict  against  the  appellant  company  on  a 
ground  of  negligence  not  advanced  by  the  declaration.  Instruc- 
tion No.  23  was  a  follows: 

"  The  jury  are  instructed  that  in  considering  the  evidence  of  the 
witnesses  in  this  case  and  determining  what  weight  shall  be 
attached  to  the  same,  they  have  the  right  to  take  into  consideration 
whatever  interest,  if  any  appears  from  the  evidence,  such  witness 
or  witnesses  may  have  in  the  result  of  the  suit." 

»  In  Neville  v.  Fine  Art  &  Gen.  Ins.  Co.,  [1897]  A.  C.  68,  p.  76,  Halsbury, 
L.  C,  said:  "  Where  you  are  complaining  of  non-direction  of  the  judge,  or 
that  he  did  not  leave  a  question  to  the  jury,  if  you  had  an  opportunity  of  asking 
him  to  do  it  and  you  abstained  from  asking  for  it,  no  Court  would  ever  have 
granted  you  a  new  trial;  for  the  obvious  reason  that  if  you  thought  you  had 
got  enough  you  were  not  allowed  to  stand  aside  and  let  all  the  expense  be 
incurred  and  a  new  trial  ordered  simply  because  of  your  own  neglect."  See 
also  Express  Company  v.  Kountze  Brothers,  8  Wall.  (U.  S.),  342,  19  L.  ed  45 
—  Ed. 

'  A  Dart  of  the  opinion  is  omitted.  —  Ed. 


370  TRIAL 

Instruction  No.  16  given  at  the  request  of  the  appellant  company 
was  as  follows: 

"  The  jury  are  instructed  that  while  the  law  permits  a  plaintiff 
in  a  case  to  testify  in  his  own  behalf,  nevertheless  the  jury  have  a 
right,  in  weighing  his  evidence  and  determining  how  much  cre- 
dence is  to  be  given  to  it,  to  take  into  consideration  that  he  is  the 
plaintiff  and  his  interest  in  the  result  of  the  suit." 

Each  of  these  instructions  asked  the  court  to  direct  the  atten- 
tion of  the  jury  to  the  same  class  of  witnesses,  namely,  those  having 
an  interest  in  the  result  of  the  suit.  Mr.  Greenleaf ,  in  his  work  on 
Evidence,  (vol.  1,  sec.  386,)  defines  an  interest  in  the  result  of  a 
suit  to  be  "  some  legal,  certain  and  immediate  interest,  however 
minute,  either  in  the  event  of  the  cause  itself,  or  in  the  record,  as 
an  instrument  of  evidence,  in  support  of  his  own  claims,  in  a  sub- 
sequent action.  It  must  be  a  legal  interest,  as  distinguished  from 
the  prejudice  or  bias  resulting  from  friendship  or  hatred,  or  from 
consanguinity,  or  any  other  domestic  or  social  or  any  official  rela- 
tion, or  any  other  motives  by  which  men  are  generally  influenced, 
for  these  go  only  to  the  credibility."  It  is  not  claimed  any  one  who 
gave  testimony,  other  than  the  appellee,  had  any  such  an  interest 
in  the  result  of  the  suit.  The  court  was  therefore  justified  in 
refusing  instruction  No.  23  as  being  but  a  repetition  of  instruction 
No.  16.  Counsel  for  the  appellant  company  asked  twenty-six 
instructions,  twenty-one  of  which  were  granted.  It  was  the 
province  and  duty  of  the  court  to  decline  to  give  a  second  instruc- 
tion on  the  same  point.  If  counsel  for  appellant  desired  the  jury 
should  be  advised  it  was  competent  for  them,  in  determining  as 
to  the  weight  and  value  proper  to  be  given  to  the  testimony  of 
witnesses,  to  consider  any  bias  or  prejudice  existing  in  the  mind 
of  the  witness,  arising  from  sentiments  of  friendship  or  hatred, 
if  any  such  bias  or  hatred  appeared,  an  instruction  should  have  been 
so  framed  for  that  purpose.  .  .  . 

Judgment  affirmed.^ 

1  In  a  few  states  requested  instructions  must  be  given  or  refused  in  the 
exact  language  of  the  request.  See  East  Tenn.,  Va.  &  Ga.  R.  R.  Co.  v.  Bay- 
Uss,  77  Ala.  429.  —  Ed. 


COBB    CHOCOLATE    COMPANY    V.    KNUDSON  371 

THE  COBB   CHOCOLATE   COMPANY  v. 
KNUDSON. 

Supreme  Court  of  Illinois.     1904. 

[Reported  207  Illinois,  452.] 

RicKS,  J.^  .  .  .  After  the  jury  were  empaneled,  and  before  the 
first  witness  was  sworn,  the  court  entered  an  order  limiting  the  num- 
ber of  instructions  to  be  given  to  thirty,  —  fifteen  for  plaintiff  and 
fifteen  for  defendant,  —  and  that  no  instructions  in  excess  of  that 
number  would  be  examined  or  received  by  the  court.  Appellant 
insists  that  such  order  was  reversible  error.  In  the  case  of  Chicago 
City  Railway  Co.  v.  Sandusky,  198  111.  400,  an  order  substantially 
the  same  was  entered,  and  while  the  court  there  deprecated  the 
giving  of  a  useless  number  of  instructions,  as  is  so  often  done,  yet 
it  was  declared  that  it  was  not  proper  to  lay  down  a  hard  and  fast 
rule  stating  the  number  of  instructions  that  should  be  given  in  a 
case,  it  being  stated  that  many  times  a  larger  number  of  short, 
concise  instructions  were  preferable  to  a  limited  number  of  long, 
diffuse  and  complicated  instructions.  In  that  case  the  number 
of  instructions  was  limited  to  twelve  on  a  side  and  the  appellant 
had  introduced  twenty  in  excess  of  that  number,  but  in  its  argu- 
ment only  dwelt  upon  the  injury  alleged  to  have  been  sustained  by 
the  refusal  of  one  of  the  twenty  instructions  not  received,  and  the 
court  being  of  the  opinion  that  the  substance  of  that  instruction  was 
contained  in  an  instruction  that  was  given  for  the  appellee,  refused 
to  reverse  the  case.  So  in  the  case  at  bar,  upon  an  examination  of 
the  instructions  not  received,  three  in  number,  we  find  that  the 
substance  of  each  of  them  was  contained  in  instructions  given. 
The  witnesses  in  this  case  were  few  in  number  and  the  issues  simple,  • 
so  appellant  was  not  unduly  hampered  by  being  allowed  but  fifteen 
instructions.  Nor  do  counsel  for  appellant,  in  their  contention, 
point  out  wherein  they  were  unable,  in  such  number  of  instruc- 
tions, to  cover  the  points  involved,  nor  have  they  sho\vn  wherein 
their  cause  was  prejudiced  by  such  restriction,  and  we  do  not  see 
how  it  could  have  been,  and  regarded  the  contention  as  not  well 
taken.  .  .  . 

Judgment  affirmed. 

1  A  part  of  the  opinion  only  is  given.  —  Ed. 


372  TRIAL 

STRUEBING   v.   STEVENSON. 
Supreme  Court  of  Iowa.     1905. 

[Reported  129  Iowa,  25.] 

Weaver,  J.^  On  March  26,  1902,  the  defendant  sold  to  the 
plaintiff  a  herd  of  thirty-two  Shorthorn  cows  and  heifers.  In  this 
action  plaintiff  charges  that  the  cows  were  expressly  warranted  to 
be  all  right,  suitable  for  breeding  purposes,  regular  breeders,  and 
that  twenty-two  head  of  them  were  with  calf  by  a  certain  thorough- 
bred bull  known  as  "  Red  Goldfinder."  In  a  second  count  of  his 
petition  he  charges  that  defendant  falsely  represented  the  cows 
to  be  as  above  stated,  and  that  in  violation  of  said  warranty,  and 
contrary  to  said  representations,  the  cows,  or  many  of  them,  were 
and  had  been  sick  of  an  obscure  disease  known  as  "  contagious 
abortion,"  were  not  suitable  for  use  for  breeding  purposes,  and  were 
not  with  calf  by  Red  Goldfinder,  to  the  great  loss  and  damage  of 
the  plaintiff.  The  defendant  took  issue  upon  the  allegations  of 
warranty  and  false  representations,  and  the  verdict  was  in  his 
favor.  Counsel  for  appellant  do  not  contend  that  the  verdict  is 
without  support  in  the  testimony,  but  argue  that  the  trial  court 
erred  in  its  instructions  to  the  jury  and  in  refusing  other  instruc- 
tions asked.     Only  two  propositions  are  relied  upon  for  a  reversal. 

I.  It  is  said  that  the  court,  in  the  second  paragraph  of  its  instruc- 
tions, erroneously  told  the  jury  in  substance  that,  if  plaintiff  had 
failed  to  prove  the  alleged  diseased  condition  of  the  cows  at  the 
time  of  their  purchase,  he  could  recover  nothing  from  the  defend- 
ant. This  it  is  said  unduly  narrowed  the  issues,  because  the  alleged 
warranty  went  beyond  the  matter  of  disease  and  assured  the  plain- 
tiff that  the  cows  were  suitable  for  breeding  purposes  and  were 
with  calf  by  Red  Goldfinder.  If  we  were  to  pass  upon  this  para- 
graph alone  as  applied  to  issues  joined  in  the  pleadings,  there 
would  be  an  appearance  of  merit  in  the  objection  here  made. 
But  the  appropriateness  of  instructions  Cannot  be  detennined  by 
the  pleadings  alone,  for  reference  must  be  had  also  to  the  testimony 
introduced  and  to  the  issues  actually  contested  upon  the  trial. 

Counsel  have  not  seen  fit  to  abstract  all  the  evidence,  but,  taking 
it  as  given  and  referring  to  the  transcript  which  has  been  certified 
to  this  court,  it  quite  clearly  appears  that  the  alleged  diseased 
condition  of  the  cows  was  the  one  central  fact  upon  which  plaintiff 
'elied  as  a  breach  of  the  alleged  warranty,  and  that  the  unsuitable- 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 


HARRINGTON    V.    THE    EUREKA    HILL   MINING    CO.  373 

ness  or  unfitness  of  the  cows  or  some  of  them  for  breeding  purposes 
was  put  forward  not  as  an  additional  ground  of  recovery,  but  as 
showing  the  deleterious  and  damaging  effects  of  the  disease  above 
referred  to.  This  feature  of  the  trial  is  further  emphasized  by  the 
fact  that  in  all  of  the  several  instructions  asked  by  the  plaintiff  his 
right  to  recover  was  based,  first,  upon  the  warranty  or  representa- 
tions, and,  second,  upon  the  diseased  or  unsound  condition  of  the 
cows.  Moreover,  it  should  be  said  that  in  another  part  of  the 
charge  the  court  correctly  stated  what  facts  were  essential  to  con- 
stitute a  warranty,  and  the  jury'  by  a  special  verdict  found  that  no 
warranty  had  been  established.  Of  the  alleged  warranty  that  the 
cows  were  with  calf  by  Red  Goldfinder,  we  think  the  abstracts  dis- 
close no  testimony  which  would  have  justified  a  verdict  in  the 
plaintiff's  favor.  We  find,  therefore,  no  prejudicial  error  in 
the  above-mentioned  paragraph  of  the  court's  instructions  to 
the  jury.  .   .   . 

For  the  reasons  stated,  the  judgment  of  the  district  court  is 
affirmed. 


HARRINGTON  v.   THE   EUREKA  HILL  MINING   CO. 
Supreme  Court  of  Utah.     1898. 
[Reported  17  Utah,  300.] 

Zane,  C.  J.^  This  action  was  brought  to  recover  damages  to 
plaintiff  in  consequence  of  personal  injuries,  caused,  as  alleged,  by 
the  negligence  of  the  defendant,  in  putting  plaintiff  to  work,  in  a 
drift  of  its  mine  that  reasonable  prudence  and  care  required  to  be 
first  timbered,  without  warning  him  of  danger.  This  is  an  appeal 
by  the  defendant  from  a  judgment  of  the  district  court  upon  the 
verdict  of  the  jury  awarding  the  plaintiff  S10,000  damages.  In 
deciding  this  appeal,  we  are  not  at  liberty  to  consider  the  evidence 
further  than  it  may  be  necessary  in  deciding  upon  the  correctness 
of  the  rulings  of  the  court  assigned  as  error,  in  applying  to  the 
evidence  principles  of  law,  and  so  far  as  necessary  to  determine 
whether  any  essential  fact  is  entirely  unsupported  by  the  evidence. 

The  defendant  assigned  as  error  the  following  statement  m  the 
charge  of  the  court:  "  The  burden  is  upon  the  defendant  to 
establish  contributory  negligence  on  the  part  of  the  plamtiff  in 
this  case."  The  rule  of  evidence  undoubtetlly  is  that  the  burden 
of  proof  lies  on  the  party  who  substantially  asserts  the  affirmative 

'  A  part  of  the  opinion  is  omitted.  —  Ed. 


374  TRIAL 

of  the  issue,  and  the  rule,  as  apphed  to  proof  of  contributory 
negligence  in  this  state,  is  that  the  defendant  is  required  to  allege 
contributory  negligence  on  the  part  of  the  plaintiff,  and  to  prove  it 
by  a  preponderance  of  the  evidence,  and  the  burden  was  not  upon 
the  plaintiff  to  disprove  it.  That  is  undoubtedly  the  rule  in  this 
state,  and  the  court  did  not  err  in  so  charging.  The  statement 
complamed  of,  standing  alone,  might  have  misled  the  jury;  but, 
when  considered  with  other  parts  of  the  charge,  it  is  not  probable 
they  were.  If  the  evidence  introduced  by  the  plaintiff  furnished 
sufficient  proof  of  contributory  negligence  on  his  part,  of  course, 
it  was  not  necessary  for  the  defendant  to  prove  it  also.  In  deter- 
mining the  question  of  contributory  negligence  on  the  part  of  the 
plaintiff,  it  was  the  duty  of  the  jurors  to  consider  the  whole  evi- 
dence bearing  on  the  issue.  If  the  plamtiff  offered  any  evidence 
tending  to  prove  or  disprove  negligence  on  his  part,  the  jurors 
should  have  considered  that,  with  the  evidence  offered  by  the 
defendant,  if  any,  tending  to  prove  or  disprove  it,  and  it  was  the 
duty  of  the  court  to  so  mform  the  jury.  In  deciding  the  issue  as 
to  the  negligence  of  the  defendant,  and  the  issue  as  to  the  contrib- 
utory negligence  of  the  plaintiff,  it  was  the  duty  of  the  jurors  to 
consider  all  the  evidence  before  them  bearing  upon  either.  Taking 
the  portion  of  the  charge  above  quoted  m  connection  with  the 
other  parts  of  it,  the  jurors  must  have  understood  they  should 
consider  all  the  evidence  before  them  in  deciding  the  issue  as  to 
contributory  negligence.  They  were  told  it  was  for  the  plamtiff 
to  prove  his  case  by  a  preponderance  of  the  evidence,  and  that, 
if  the  evidence  bearing  upon  his  case  was  evenly  balanced,  or  it 
preponderated  in  favor  of  the  defendant,  the  plaintiff  could  not 
recover;  that,  if  the  danger  to  which  the  plaintiff  was  exposed  was 
equally  visible  to  plaintiff  and  defendant,  and  the  plaintiff  had 
equal  or  superior  opportunity  to  that  of  the  defendant  to  ascertain 
the  danger,  the  defendant  was  not  liable.  While  the  court  in- 
formed the  jury  that  the  burden  was  upon  the  plaintiff  of  proving 
negligence  on  the  part  of  the  defendant,  and  the  burden  was  upon 
the  defendant  of  proving  contributory  negligence  on  the  part  of  the 
plaintiff,  as  reasonable  men  they  must  have  understood,  from  the 
entire  charge,  that  they  were  to  decide  those  issues  from  all 
the  evidence  bearing  upon  them,  and  that,  in  so  doing,  they  were 
not  limited  to  the  consideration  of  the  evidence  offered  by  either 
side.  .   .   .  The  judgment  is  affirmed.^ 

Bartcii  and  Miner,  JJ.,  concur. 

1  City  of  Beatrice  v.  Forbes,  74  Neb.  125,  103  N.  W.  1069,  accord.  —Ed. 


COMMONWEALTH   V.    TUEY  375 

COMMONWEALTH  v.   TUEY. 
Supreme  Judicial  Court  of  Massachusetts.     1851. 

[Reported  8  Cushing,  1.] 

On  the  trial  in  the  court  of  common  pleas,  before  Hoar,  J.,  of 
an  indictment  against  the  defendant,  the  jury,  having  received 
instructions  from  the  judge,  to  which  no  exception  was  taken, 
retired  to  consider  of  their  verdict,  and  after  an  absence  of  several 
hours,  Avere  sent  for  by  the  judge,  and  reported  that  they  had  been 
unable  to  agree.  The  judge  thereupon  said  to  them,  in  substance, 
as  follows :  — 

"  The  only  mode,  provided  by  our  constitution  and  laws  for 
deciding  questions  of  fact  in  criminal  cases,  is  by  the  verdict  of  a 
jury.     In  a  large  proportion  of  cases,  and  perhaps,  strictly  speak- 
ing, in  all  cases,  absolute  certainty  cannot  be  attained  or  expected. 
Although  the  verdict  to  which  a  juror  agrees  must  of  course  be  his 
own  verdict,  the  result  of  his  own  convictions,  and  not  a  mere 
acquiescence  in  the  conclusion  of  his  fellows,  yet,  in  order  to  bring 
twelve  minds  to  a  mianimous  result,  you  must  examine  the  ques- 
tions submitted  to  you  with  candor,  and  with  a  proper  regard  and 
deference  to  the  opinions  of  each  other.     You  should  consider  that 
the  case  must  at  some  time  be  decided ;  that  you  are  selected  in  the 
same  manner,  and  from  the  same  source,  from  which  any  future 
jury  must  be;  and  there  is  no  reason  to  suppose  that  the  case  will 
ever  be  submitted  to  twelve  men  more  intelligent,  more  impartial, 
or  more  competent  to  decide  it,  or  that  more  or  clearer  evidence 
will  be  produced  on  the  one  side  or  the  other.     And  with  this  view, 
it  is  your  duty  to  decide  the  case,  if  you  can  conscientiously  do  so. 
In  order  to  make  a  decision  more  practicable,  the  law  imposes  the 
burden  of  proof  on  one  party  or  the  other,  in  all  cases.      In  the 
present  case,  the  burden  of  proof  is  upon  the  commonwealth  to 
establish  every  part  of  it,  beyond  a  reasonable  doubt;  and  if,  in  any 
part  of  it,  you  are  left  in  doubt,  the  defendant  is  entitled  to  the 
benefit  of  the  doubt,  and  must  be  acquitted.     But,  in  conferring 
together,  you  ought  to  pay  proper  respect  to  each  other's  opinions, 
and  listen,  with  a  disposition  to  be  convinced,  to  each  other's 
arguments.     And,  on  the  one  hand,  if  much  the  larger  number  of 
your  panel  are  for  a  conviction,  a  dissenting  juror  should  consider 
whether  a  doubt  in  his  own  mind  is  a  reasonable  one,  which  makes 
no  impression  upon  the  minds  of  so  many  men,  equally  honest, 
equally  intelligent  with  himself,  and  who  have  heard  the  same 


376  TRIAL 

evidence,  with  the  same  attention,  with  an  equal  desire  to  arrive 
at  the  truth,  and  under  the  sanction  of  the  same  oath.  And,  on 
the  other  hand,  if  a  majority  are  for  acquittal,  the  minority  ought 
seriously  to  ask  themselves,  whether  they  may  not  reasonably,  and 
ought  not  to  doubt  the  correctness  of  a  judgment,  which  is  not 
concurred  in  by  most  of  those  with  whom  they  are  associated ;  and 
distrust  the  weight  or  sufficiency  of  that  evidence  which  fails  to 
carry  conviction  to  the  minds  of  their  fellows." 

The  jury  were  then  directed  to  retire,  and  deliberate  further 
upon  the  case;  and  having  done  so,  found  the  defendant  guilty, 
who  thereupon  alleged  exceptions  to  the  foregoing  instructions. 

BiGELOW,  J.  The  defendant  objects  to  the  mstructions  given 
to  the  jury  in  this  case,  on  the  ground,  that  they  were  equivalent 
to  a  direction,  on  the  part  of  the  court,  to  a  minority  of  the  jury  to 
yield  their  own  opinions  and  judgment  to  the  views  of  the  majority, 
and  render  a  verdict  in  conformity  therewith;  or,  in  other  words, 
that  a  dissenting  juror  was  bound  to  take  into  consideration  the 
opinions  of  his  fellows,  as  an  element  by  which  his  own  convictions 
were  to  be  controlled.  But  we  do  not  so  understand  the  purport 
and  effect  of  the  language  used  by  the  judge  who  tried  the  cause. 
The  instructions  went  no  further,  than  to  say,  that  if  any  of  the 
jury  differed,  in  their  views  of  the  evidence,  from  a  large  number 
of  their  fellows,  such  difference  of  opinion  should  mduce  the 
minority  to  doubt  the  correctness  of  their  own  judgments,  and  lead 
them  to  a  reexamination  and  closer  scrutiny  of  the  facts  in  the  case, 
for  the  purpose  of  revising  and  reconsidering  their  preconceived 
opinions.  In  this  view,  the  court  did  nothing  more  than  to  pre- 
sent to  the  minds  of  the  dissenting  jurors  a  strong  motive  to 
unanimity. 

Upon  a  careful  consideration  of  these  instructions,  we  are  clearly 
of  opinion,  that  so  far  from  being  improper,  or  of  a  nature  to  mis- 
lead, they  were  entirely  soimd,  and  well  adapted  to  bring  to  the 
attention  of  the  jury  one  of  the  means  by  which  they  might  be 
safely  guided  in  the  performance  of  their  duty.  A  proper  regard 
for  the  judgment  of  other  men  will  often  greatly  aid  us  in  forming 
our  own.  In  many  of  the  relations  of  life,  it  becomes  a  duty  to 
yield  and  conform  to  the  opinions  of  others,  when  it  can  be  done 
without  a  sacrifice  of  conscientious  convictions;  more  especially 
is  this  a  duty,  when  we  are  called  on  to  act  with  others,  and  when 
dissent  on  our  part  may  defeat  all  action,  and  materially  affect  the 
rights  and  interests  of  third  parties.  Such  is  the  rule  of  duty 
constantly  recognized  and  acted  on  by  courts  of  justice.     They  not 


CRANSTON  V.    N.  Y.  CENTRAL  &  HUDSON  RIVER  R.  R.  CO.  377 

only  form  their  opinions,  but  reconsider,  revise,  and  modify  their 
own  declared  judgments,  by  the  aid  and  in  the  light  of  the  decisions 
of  other  tribunals.  But  this  could  not  be  done,  if  it  were  not 
permitted  to  them  to  doubt  and  correct  their  opinions,  when  they 
were  found  to  differ  from  those  of  other  men,  who  have  had  equal 
opportunities  of  aiTiving  at  sound  conclusions  with  themselves. 

The  jury  room  is,  surely,  no  place  for  pride  of  opinion,  or  for 
espousing  and  maintainmg,  in  the  spirit  of  controversy,  either  side 
of  a  cause.  The  single  object  to  be  there  effected  is  to  arrive  at  a 
true  verdict:  and  this  can  only  be  done  by  deliberation,  mutual 
concession,  and  a  due  deference  to  the  opinions  of  each  other. 
By  such  means  and  such  only,  in  a  body  where  unanimity  is  re- 
quired, can  safe  and  just  results  be  attained;  and  without  them, 
the  trial  by  jury,  instead  of  being  an  essential  aid  m  the  administra- 
tion of  justice,  would  become  a  most  effectual  obstacle  to  it. 

Exceptions  overruled.^ 


CRANSTON,  as  Admmistratrix,  etc.,  v.  THE  NEW  YORK 
CENTRAL  AND   HUDSON   RIVER   RAILROAD   COM- 
PANY. 

Court  of  Appeals  of  New  York.     1886. 

[Reported  103  New  York,  614.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  third  judicial  department,  entered  upon  an  order 
made  February  11,  1886,  which  affirmed  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict.     (Reported  below,  39  Hun,  308.) 

This  action  w^as  brought  to  recover  damages  for  alleged  neg- 
ligence causing  the  death  of  David  Cranston,  plaintiff's  intestate, 
who  was  killed  while  crossing  defendant's  road,  the  wagon  in  which 
he  was  riding  having  been  struck  by  an  engine  attached  to  a  train 
passing  on  said  road. 

The  facts,  so  far  as  material  to  the  question  discussed,  are  stated 
in  the  opinion. 

1  In  Highland  Foundry  Co.  v.  N.  Y.,  N.  H.,  &  H.  R.  R.,  199  Mass.  403, 
85  N.  E.  437  the  court  said:  "  There  is  perhaps  no  case  in  our  reports  more 
famiHar  to  those,  whether  on  the  bench  or  at  the  bar,  who  are  engaged  in  the 
trial  of  jurj'  cases,  than  Commonwealth  v.  Tuey.  It  is  often  quoted  or  read  to 
juries  slow  in  coming  to  a  verdict,  and  many  times  with  salutary  effect.  But 
it  generally  has  been  regarded  by  the  profession  as  going  nearly  if  not  quite  to 
the  extreme  limit."  —  Ed. 


378  TRIAL 

Rapallo,  J.  It  is  a  serious  question  whether  the  uncontro- 
verted  evidence  did  not  disclose  a  want  of  the  care  and  caution 
which  the  law  required  of  the  plaintiff's  intestate  in  approaching 
so  dangerous  a  crossing  as  that  at  which  he  lost  his  life,  and  whether 
a  nonsuit  should  not,  therefore,  have  been  ordered;  but  we  need 
not  discuss  that  question,  as  the  case  contains  an  exception  which 
we  are  all  agreed  is  well  taken,  and  requires  a  reversal  of  the  judg- 
ment and  a  new  trial.  After  the  jury  had  retired  to  consider  their 
verdict,  they  came  into  court,  and  one  of  them  stated  that  there 
was  no  probability  of  their  agreeing.  To  this  the  court  replied  as 
follows:  "  I  can't  take  any  such  statement  as  that,  gentlemen; 
you  must  get  together  upon  a  matter  of  this  kind."  He  then 
added,  "  no  juror  ought  to  remain  entirely  firm  in  his  own  convic- 
tion one  way  or  another,  until  he  has  made  up  his  mind,  beyond  all 
question,  that  he  is  necessarily  right  and  the  others  are  necessarily 
wrong."  To  this  statement  the  defendant's  counsel  excepted. 
The  jury  thereupon  brought  in  a  verdict  for  the  plaintiff. 

We  are  of  opinion  that  the  instruction  excepted  to  was  not  a 
correct  statement  of  the  law.  It  was  incumbent  upon  the  party 
holding  the  affirmative  of  the  issue,  who  in  this  case  was  the  plain- 
tiff, to  satisfy  the  jury,  by  a  preponderance  of  evidence,  of  the  facts 
upon  which  her  right  to  recover  depended.  If  she  failed  to  do  so 
the  defendant  was  entitled  to  a  verdict.  The  jurors  who  were  not 
satisfied  by  the  evidence,  of  the  truth  of  the  plaintiff's  allegations, 
were  justified  in  refusing,  for  that  reason,  to  find  a  verdict  in  her 
favor,  although  they  might  not  have  made  up  their  minds  beyond 
all  question  that  they  were  necessarily  right,  and  that  those  who 
were  in  favor  of  fuiding  a  verdict  for  the  plaintiff  were  necessarily 
wrong.  To  sustain  this  instruction  would  be  to  cast  upon  the 
defendant,  in  a  civil  action,  a  burden  quite  as  heavy  as  that  which 
rests  upon  the  prosecution  in  a  criminal  case,  and  perhaps  still 
more  onerous.  If  the  evidence  was  so  clear  as  to  lead  to  a  conclu- 
sion with  the  degree  of  certainty  required  by  the  charge,  there  was 
nothing  to  submit  to  the  jury,  and  it  was  the  duty  of  the  court 
either  to  direct  a  verdict  or  to  nonsuit  the  plaintiff. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  costs 
to  abide  the  event. 

All  concur.  Judgment  reversed.^ 

1  See  Richardson  v.  Coleman,  1.31  Ind.  210,  29  N.  E.  909;  Armstrong  v. 
James  &  Co.,  1.55  la.  562,  VM  N.  W.  686;  Covey  v.  Rogers,  85  Vt.  308,  81  Atl. 
1130;   Barlow  v.  Foster,  149  Wis.  013,  136  N.  W.  822.  —  Ed. 


LESTER    V.    STANLEY  379 

Section   IX. 
Conduct  and  Deliberations  of  the  Jury. 

[Blackstone,  CommcnUirics,  Book  III,  *375-*376.] 

The  jury,  after  the  proofs  are  summed  up,  unless  the  case  be 
very  clear,  withdraw  from  the  bar  to  consider  of  their  verdict: 
and  in  order  to  avoid  intemperance  and  causeless  delay,  are  to  be 
kept  without  meat,  drink,  fire,  or  candle,  miless  by  permission  of 
the  judge,  till  they  are  all  unanimously  agreed,  a  method  of 
accelerating  unanimity  not  wholly  unknown  in  other  constitutions 
of  Europe,  and  in  matters  of  greater  concern.  For,  by  the  golden 
bull  of  the  empire,  if,  after  the  congress  is  opened,  the  electors 
delay  the  election  of  a  king  of  the  Romans  for  thirty  days,  they  shall 
be  fed  only  with  bread  and  water  till  the  same  is  accomplished. 
But  if  our  juries  eat  or  drink  at  all,  or  have  any  eatables  about 
them,  without  consent  of  the  court,  and  before  verdict,  it  is  finable; 
and  if  they  do  so  at  his  charge  for  whom  they  afterwards  find,  it 
will  set  aside  the  verdict.  Also,  if  they  speak  with  either  of  the 
parties  or  their  agents,  after  they  are  gone  from  the  bar;  or  if  they 
receive  any  fresh  evidence  in  private;  or  if  to  prevent  disputes 
they  cast  lots  for  whom  they  shall  find;  any  of  these  circumstances 
will  entirely  vitiate  the  verdict.  And  it  has  been  held,  that  if  the 
jurors  do  not  agree  in  their  verdict  before  the  judges  are  about  to 
leave  the  to-wn,  though  they  are  not  to  be  threatened  or  imprisoned, 
the  judges  are  not  bound  to  wait  for  them,  but  may  carry  them 
round  the  circuit  from  town  to  tovm  in  a  cart.  This  necessity  of  a 
total  unanimity  seems  to  be  peculiar  to  our  own  constitution;  or, 
at  least  in  the  nembda  or  jury  of  the  ancient  Goths,  there  was 
required  (even  in  criminal  cases)  only  the  consent  of  the  major 
part;  and  in  case  of  an  equality,  the  defendant  was  held  to  be 
acquitted. 

LESTER  V.   STANLEY. 

Circuit  Court  of  the  United  States  for  the  District 
OF  Connecticut.     1808. 
[Reported  3  Day,  287.] 

After  this  case  had  been  committed  to  the  jury,  and  they  were 
about  to  retire,  Livingston,  J.  remarked,  that  he  understood  it  had 
sometimes  been  the  practice  with  juries  in  this  state  to  separate 
while  they  had  a  case  under  consideration.  The  rule  of  the 
common  law  requires  them  to  be  kei)t  together  until  they  have 


c 


380  TRIAL 

agreed  on  a  verdict;  and  on  looking  at  the  statute,  we  do  not  per- 
ceive that  that  varies  it.  The  statute,  indeed,  appears  to  have 
been  made  in  affirmance  of  the  common  law.  The  words  are 
explicit:  "  And  when  the  court  have  committed  any  case  to  the 
consideration  of  the  jury,  the  jury  shall  be  conffiied,  under  the 
custody  of  an  officer  appointed  by  the  court,  until  they  are  agreed 
on  a  verdict."  If  they  separate  before,  and  afterwards  return  a 
verdict,  it  will  be  set  aside. 


NEWELL  V.   AYER  et  al. 
Supreme  Judicial  Court  of  Maine.     1850. 
[Reported  32  Maine,  334.] 

A  MESSAGE  was  scnt  by  the  jury  to  the  Judge,  that  they  were 
not  likely  to  agree  upon  a  verdict;  and  the  officer,  under  direction 
of  the  Judge,  opened  the  door  and  apprised  the  jury  that  they  were 
called  into  court.  It  was  then  said  by  one  of  the  jury  that  they 
could  probably  agree,  and  the  Judge,  on  being  notified  of  it, 
recalled  the  order.  While  the  door  was  thus  opened,  two  of  the 
jurors  left  the  room  for  a  minute  or  two,  and  then  returned,  after 
which  a  verdict  was  agreed  upon. 

For  this  cause,  a  motion  was  made  for  a  new  trial. 

The  two  jurors  testified  that,  their  absence  was  upon  a  needful 
occasion,  and  that,  while  absent,  they  had  no  conversation  with 
any  person. 

_  Wells,  J.,  orally.  Where  misconduct  on  the  part  of  jurors  has 
been  of  injury  to  a  party,  it  is  the  duty  of  the  court  to  set  aside  their 
verdict.  It  was  misconduct  in  the  two  jurors  to  leave  their  room 
without  permission  of  the  court.  But  they  held  no  conversation 
with  any  one,  and  it  does  not  appear  that  any  injury  could  have 
resulted  from  their  act.  The  motion  is  overruled. 


THE  CITY  OF  NEW  ALBANY   v.   McCULLOCH. 

Supreme  Court  of  Indiana.     189L 

[Reported  127  Indiana,  500.] 

Coffey,  J.^  This  was  an  action  by  the  appellee  against  the 
appellant,  instituted  in  the  Floyd  ( -ircuit  Court,  to  recover  dam- 
ages on  account  of  personal  injuries  sustained  by  the  appellee  by 
reason  of  a  defective  sidewalk.  .  .  . 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


THE    CITY   OF   NEW   ALB.INY    V.    MCCULLOCH  3S1 

A  trial  of  the  cause  by  jury  resulted  in  a  verdict  for  the  appellee, 
upon  which  the  court,  over  a  motion  for  a  new  trial,  rendered 
judgment.  .  .  . 

It  is  contended  l)y  the  appellant  that  one  of  the  jurors  whc  tried 
the  cause  was  guilty  of  such  misconduct  as  entitles  it  to  a  new 
trial. 

It  appears,  by  affidavits  on  file,  that  one  of  the  jurors  separated 
from  the  remaming  eleven,  after  they  had  retired  to  deliberate  of 
their  verdict,  without  the  permission  of  the  court,  and  remained 
out  of  sight  of  the  bailiff  and  the  other  jurors  for  one  half  hour. 

In  support  of  the  verdict  the  appellee  filed  the  affidavit  of  the 
juror  who  absented  himself  to  the  effect  that  during  his  absence 
from  the  other  jurors  he  did  not  conmiunicate  with  any  one  in 
relation  to  the  case,  or  upon  any  subject  connected  therewith. 

Misconduct  of  a  juror,  in  order  to  be  sufficient  to  authorize  the 
granting  of  a  new  trial,  must  be  gross,  and  must  have  resulted  in 
probable  injury  to  the  complaining  party.  Harrison  v.  Price,  22 
Ind.  165;  Whelchell  v.  State,  23  Ind.  89;  Medler  v.  State,  ex  rel., 
26  Ind.  171;  Carter  v.  Ford  Plate  Glass  Co.,  85  Ind.  180. 

However  reprehensible  the  conduct  of  the  juror  who  absented 
himself  from  the  others  may  have  been,  under  the  showing  that 
he  had  no  communication  with  any  person  upon  the  subject  of  the 
case  which  he  was  sworn  to  try,  we  think  it  cannot  be  inferred 
that  his  absence  probably  mjured  the  appellant.  In  the  absence 
of  such  a  showing,  we  have  seen  that  his  misconduct  was  not 
sufficient  to  authorize  a  new  trial. 

We  are  of  the  opinion  that  there  is  no  available  error  in  the 
record. 

Judgment  affirmed} 

»  See  Obear  v.  Gray,  68  Ga.  182;  Boggs  v.  Chicago,  etc.,  R.  R.  Co.,  29  la. 
577;  Pracht  v.  "VNOiittridge,  44  Kan.  710,  25  Pac.  192;  Ehrhard  v.  McKee, 
44  Kan.  715,  25  Pac.  193;  Commonwealth  v.  Edgerton,  200  Mass.  318,  86  N.  E. 
768;  Compton  v.  Arnold,  54  Mo.  149;  Oram  v.  Bishop,  7  Halst.  (N.  J.),  1.53; 
Armleder  v.  Lieberman,  33  Oh.  St.  77;  Edward  Thompson  Co.  v.  Gunderson, 
10  S.  D.  42,  71  N.  W.  764;   Downer  v.  Baxter,  30  Vt.  467.—  Ed. 


11  0^  I 


382  TRIAL 

NICHOLS  V.   NICHOLS. 

Supreme  Judicial  Court  of  Massachusetts.     1884. 

[Reported  136  Massachusetts,  256.] 

Contract  upon  a  promissory  note  for  $3000.  Trial  in  this 
court,  before  Colbum,  J.  The  jury  returned  a  verdict  for  the 
plamtiff. 

The  defendant  subsequently  moved  to  have  the  verdict  set 
aside  on  account  of  the  acts  of  the  officer  having  the  jury  m  charge. 
Colbum,  J.,  overruled  the  motion,  and  reported  the  case  for  the 
consideration  of  the  full  court,  in  substance  as  follows: 

The  court  was  adjourned  on  Friday  afternoon  until  Monday 
morning,  the  jury  being  left  in  charge  of  an  officer,  with  instruc- 
tions to  discharge  them  if  they  did  not  agree  by  ten  o'clock  that 
evening,  and,  if  they  agreed,  to  have  them  seal  their  verdict  and 
return  it  on  Monday  morning.  The  judge  left  town  immediately 
after  the  adjournment  of  court.  After  the  judge  had  left,  the 
foreman  of  the  jury  told  the  officer  that  a  juror  was  sick,  had  a 
chill,  and  required  some  brandy.  The  officer  saw  the  juror,  and 
thought  him  sick.  He  sent  to  a  druggist  and  got  a  two-ounce  vial 
of  brandy  and  passed  it  to  the  foreman.  Afterwards,  another 
juror  fell  upon  the  floor  in  a  fit,  and  the  officer  sent  for  a  physician, 
and  allowed  him  to  administer  to  such  juror,  who  recovered.  Sub- 
sequently, the  jury  agreed  upon  a  verdict  for  the  plaintiff,  sealed 
it  up,  and  were  discharged,  and  returned  the  verdict  to  court  on 
Monday  morning. 

The  judge  was  satisfied  that  the  officer  acted  in  entire  good 
faith,  and  that  the  defendant  was  in  no  way  prejudiced  by  his 
acts. 

If  the  ruling  was  right,  the  verdict  was  to  stand;  otherwise, 
the  verdict  to  be  set  aside. ^ 

C.  Allen,  J.  .  .  .  On  the  motion  for  a  new  trial,  the  presiding 
judge  found  as  a  fact,  that  the  officer  acted  in  entire  good  faith,  and 
that  the  defendant  was  in  no  way  prejudiced  by  his  acts.  Motions 
for  a  new  trial  are  addressed  to  the  discretion  of  the  presiding  judge. 
Boston  V.  Robbins,  116  Mass.  313.  Woodward  v.  Leavitt,  107 
Mass.  453,  460.  His  determination  upon  the  matters  of  fact  is  not 
open  to  revision  by  us,  nor  is  his  decision  overruling  the  motion, 
unless,  as  matter  of  law,  he  was  required,  upon  the  facts  found,  to 

1  The  statement  of  facts  is  abridged  and  a  part  of  the  opinion  is  omitted.  — 
Ed. 


NICHOLS    V.    NICHOLS  383 

set  aside  the  verdict.  Brady  v.  American  Print  Works,  119  Mass. 
98,  and  cases  cited.  No  other  question  is  presented  to  us  by  the 
report  in  this  case.  In  Commonwealth  v.  Roby,  12  Pick.  496, 
which  was  an  indictment  for  murder,  the  decision  related  only  to 
cider,  the  use  of  which  by  the  jury  was  held  not  to  be  a  cause  for 
granting  a  new  trial;  and  it  was  stated,  as  the  result  of  the  authori- 
ties then  brought  to  the  attention  of  the  court,  that,  where  ardent 
spirits  have  been  used  by  the  jury,  it  is  proper  to  set  aside  the 
verdict.  Since  that  decision,  the  question  has  often  arisen  in  other 
jurisdictions,  and  the  preponderance  of  modern  judicial  opinion 
seems  to  be  that  taking  spirits  in  moderate  quantities  as  a  bever- 
age is  not  necessarily  regarded  as  a  legal  cause  for  a  new  trial,  unless 
it  is  shoA\Ti  that  it  operated  injuriously.  Many  cases  upon  this 
subject  are  referred  to  by  counsel,  and  others  are  collected  in 
Whart.  Crim.  PI.  &  Pr.  §§  731,  841.  However  this  may  be,  we 
do  not  think  the  rules  of  law  imperatively  require  us  to  hold  that  it 
is  a  legal  cause  for  settmg  aside  the  verdict,  where  a  juror,  who  is 
seized  with  a  sudden  temporary  indisposition,  without  the  inter- 
vention or  knowledge  of  either  party  to  the  suit,  obtains  and  uses, 
merely  for  the  relief  of  his  disease  or  pain,  a  small  quantity  of 
spirits,  and  where  it  appears  that  he  is  not  thereby  disqualified 
for  the  due  performance  of  his  duty  as  a  juror. 

The  question  of  the  effect  of  the  introduction  of  the  physician 
into  the  jury-room,  for  the  purpose  of  giving  medical  aid  and  relief 
to  the  juror,  who  appears  to  have  stood  in  pressing  need  thereof, 
is  not  free  from  difficulty.  It  is,  however,  obvious  that  a  merely 
temporary  attack  of  sickness,  though  it  may  for  the  time  being 
incapacitate  the  juror,  is  not  a  necessary  ground  for  the  discharge 
of  the  ']\iry.  It  is  proper,  when  the  circumstances  will  admit,  to 
await  the  result,  and  see  if  within  a  reasonable  time  he  so  far  re- 
covers as  to  enable  the  trial  to  proceed,  or  a  verdict  to  be  returned. 
If  such  sickness  is  brought  to  the  attention  of  the  court  while  the 
jury  are  deliberating  on  their  verdict,  and  medical  attendance 
appears  to  be  necessary,  the  better  way  ordinarily  would  seem  to 
be  for  the  court  to  select  a  suitable  physician,  and  to  caution  him 
in  advance  not  to  enter  into  any  conversation  with  any  of  the 
jury  upon  the  case,  or  upon  any  matter  except  such  as  may  be 
directly  connected  with  the  needed  relief  for  the  disorder.  The 
court  must  have  the  power,  in  its  discretion,  to  allow  suitable  and 
necessary  medicines  and  medical  attendance  to  be  furnished  to  the 
jury,  and,  indeed,  it  is  its  plain  duty  to  see  to  it  that  such  are 
furnished  in  case  of  urgent  need.     In  the  present  case,  the  judge 


384  TRIAL 

was  not  accessible  at  the  time,  but  nothing  appears  to  have  been 
done  differently  from  what  might  well  have  been  ordered  by  him. 
The  officer  and  the  physician  were  both  competent  as  witnesses 
to  testify  to  the  extent  of  their  communications  with  the  jury. 
There  is  no  reason  to  supjDose  that  either  of  t'hem  said  anything  to 
any  jui'or  which  in  any  way  bore  upon  the  case  under  consideration; 
or  that  the  course  of  substantial  justice  was  to  any  extent  perverted 
or  disturbed  by  what  occurred.     This  was  a  matter  which  it  was 
especially  for  the  presiding  justice  to  investigate.     We  camiot  say, 
as  matter  of  law,  that  a  new  trial  must  necessarily  be  granted. 
It  is  not  as  if  there  had  been  a  voluntary  and  gratuitous  intrusion 
upon  the  deliberations  of  the  jury,  for  the  purpose  of  taking  part 
therein  or  of  listening  thereto,  with  a  submission  on  the  part  of  the 
jury  to  such  intrusion,  so  that  their  deliberations  were  voluntarily 
conducted  by  them  in  the  presence  of  an  unauthorized  person,  as 
was  the  case  in  People  v.  Knapp,  42  Mich.  267,  269.      In  the 
various  emergencies  which  are  liable  to  occur  in  the  course  of  a 
protracted  trial,  irregularities  must  occur  sometimes.     While  the 
court  will  always  seek  to  guard  against  them,  and  especially  to 
keep  the  jury  as  far  as  possible  from  all  influences  which  can  cast  a 
suspicion  upon  the  integrity  of  their  verdict,  it  nevertheless  ought 
not  to  be  swift  to  grant  a  new  trial  on  account  of  irregularities  not 
attended  with  any  intentional  wrong,  and  where  it  is  made  satis- 
factorily to  appear  that  the  party  complaining  has  not  and  could 
not  have  sustained  any  injury  from  them.      People  v.  Ransom, 
7  Wend.  417,  424.      1  Bish.  Crim.  Proc.  §  1277,  and  cases  there 
cited.  Judgment  on  the  verdict.^ 

See  Wesley  v.  Chicago,  etc.,  Ry.  Co..  84  la.  441,  51  N.  W.  163. 

As  to  the  effect  of  the  drinking  of  intoxicating  liquors  by  jurors,  see  Sanitary 
District  of  Chicago  v.  Cullerton,  147  111.  383,  35  N.  E.  723;  Patrick  v.  Victor 
Knitting  Mills  Co.,  37  N.  Y.  App.  Div.  7,  55  N.  Y.  Supp.  340. 

As  to  the  effect  of  eating  or  drinking  without  the  permission  of  the  court,  see 
Commonwealth  v.  Roby,  12  Pick.  (Mass.),  49G,  516;  2  Thompson,  Trials,  2d 
ed.,  sees.  2562,  2563. 

As  to  the  effect  of  the  presence  of  a  stranger  in  the  jury  room,  see  Starling  v. 
Thorne,  87  Ga.  513,  13  S.  E.  552;  Barbour's  Adm'rs  v.  Archer,  3  Bibb  (Ky.),  8. 
See  also  Sanitary  District  of  Chicago  v.  Cullerton,  147  111.  385,  35  N.  E.  723; 
Baizley  v.  Welsh,  71  N.  J.  L.  471,  60  Atl.  59;  2  Thompson,  Trials,  2d  ed.,  sec. 
2553.  —  Ed. 


STATE    V.    MURPHY  385 

STATE   V.   MURPHY. 

Supreme  Court  of  North  Dakota.     1908. 

[Reported  17  North  Dakota,  48.] 

Morgan,  C.  J.^  The  defendant  was  convicted  of  the  crime  of 
forgery  in  the  third  degree,  and  sentenced  to  imprisonment  in  the 
penitentiary  for  the  period  of  one  year  and  six  months.  .  .  . 

After  the  jury  had  been  dehberating  on  their  verdict  for  about 
forty-eight  hours,  the  trial  judge  was  sent  for  by  the  jury,  and  he 
appeared  pursuant  to  such  request,  and  the  following  proceedings 
were  had  as  stated  by  the  trial  judge  m  the  settled  statement  of  the 
case:  "  At  some  time  between  the  hours  of  8.30  and  9  o'clock  on 
December  3,  1906,  the  said  Honorable  Chas.  A.  Pollock,  on  coming 
to  the  courtroom  and  his  chambers  and  being  informed  that  the 
jury  or  some  of  the  jurors  desired  to  communicate  with  him, 
went  to  the  room  where  said  j  ury  were  deliberating  and  were  con- 
fined, rapped  on  the  floor,  and,  the  door  being  immediately  opened 
by  some  one  from  the  inside  and  bemg  opened  from  right  to  left, 
stepped  inside  of  the  door,  leaving  the  jury  room  door  ajar,  and 
while  standing  in  the  open  space  addressed  the  jury  as  follows: 
'  Good  evening,  gentlemen.  I  understand  you  want  to  see  me. 
Have  you  agreed  ?  '  To  which  the  foreman  of  the  jury  answered: 
'  No;  I  think  we  cannot  agree.'  Whereupon  the  Honorable 
Charles  A.  Pollock,  after  pausing  for  a  second,  replied:  '  I  will 
ask  you  to  consider  the  matter  further.  Good  night.'  Where- 
upon the  said  Honorable  Chas.  A.  Pollock  closed  the  door  to  the 
said  jury  room  and  returned  to  his  chambers.  Thereafter,  in  a 
short  time,  the  bailiff  reported  to  the  said  Honorable  Chas.  A. 
Pollock  that  the  jury  had  agreed.  That  the  visit  of  the  said 
Honorable  Chas.  A.  Pollock  to  the  said  jury  room  and  the  con- 
versation there  had  between  himself  and  the  juror,  as  aforesaid, 
was  had  in  the  absence  of  the  defendant  and  his  comisel,  and  was 
without  the  knowledge  or  consent  of  the  defendant  or  his  counsel, 
and  that  no  person  or  persons  were  present  at  said  conversation, 
except  the  Honorable  Chas.  A.  Pollock  and  the  members  of  the 
jury.  And  that  no  record  was  made  at  the  time  of  what  was  said 
and  done  on  the  occasion  of  the  said  visit  of  the  said  judge  to  the 
said  jury  room.  I  will  further  state  that  my  addressing  the  jury  as 
'  Good  evening,'  or  '  Good  night,'  was  nothing  more  than  a  saluta- 

'  A  part  of  the  opinion  of  the  Chief  Justice,  together  with  the  concurring 
opinion  of  Spalding,  J.,  is  omitted.  —  Ed. 


386  TRIAL 

tion,  and  anything  I  said  to  them  was  not  stated  in  a  dictatorial 
manner,  or  intended  or  calculated  as  a  threat.  I  will  add,  further, 
that  in  doing  what  I  did  I  simply  followed  the  practice  which  has 
obtained  in  this  district  so  long  as  I  have  known  anything  of  the 
practice,  covering  a  period  of  26  years.  .  .  .  And  in  going  to  the 
jury  room  upon  the  occasion  in  question  the  only  object  the  court 
had  was  to  ascertain  whether  any  one  was  sick  and  unable  to 
further  deliberate,  and  also  to  find  out  whether  they  had  agreed, 
and  in  no  manner  by  word,  act  or  deed  attempted  to  influence  their 
deliberations." 

As  to  the  purity  of  the  intentions  of  the  judge  in  going  into  the 
jury  room  in  this  case,  and  there  having  the  brief  communication 
with  the  jury,  no  certificate  or  proof  is  necessary  so  far  as  this 
court  is  concerned,  as  it  well  knows  that  his  uprightness  and  sincere 
desire  to  be  absolutely  just  and  fair  in  all  cases  are  beyond  question. 
That  admitted  fact,  however,  does  not  meet  the  question  before  us, 
which  is:  Did  he  do  that  which  was  beyond  his  judicial  f mictions 
in  respect  to  the  case  ?  We  are  forced  to  the  conclusion  that  he 
did.  His  presence  in  the  jury  room  for  any  kind  of  communication 
with  the  jury  is  not  contemplated  by  any  provision  of  the  statute. 
The  opposite  is  the  plain  inference  from  the  statute.  All  communi- 
cation to  the  jury  in  open  court  is  subject  to  exception  by  the 
parties,  if  deemed  improper.  If  any  communication  is  made  to 
them  in  the  jury  room  in  the  absence  of  the  parties,  no  opportu- 
nity is  afforded  for  objections  and  exceptions  at  the  time.  The 
open  court  is  the  place  for  communications  to  the  jury  in  the 
presence  of,  or  on  notice  to  the  attorneys.  The  jury  room  is  for 
the  jury  alone,  and  no  communications  are  allowed  with  them  in 
the  room  except  upon  orders  from  the  court  through  the  officer  in 
charge  of  them,  who  is  permitted  to  ask  them  whether  they  have 
agreed  upon  a  verdict.  All  communications  to  the  jury  in  refer- 
ence to  the  case  should  be  made  in  open  court,  and  all  communica- 
tions to  them  in  the  jury  room  avoided.  In  this  way  all  distrust 
and  fear  that  something  improper  is  said  or  done  will  be  without 
foundation,  and  every  act  be  subject  to  exception  and  review. 
Any  communication  by  word  or  writing  not  in  open  court  affects 
the  efficiency  of  jury  trials  as  a  means  of  accomplishing  justice  after 
giving  all  parties  full  opportunity  of  being  heard  at  all  stages  of  the 
trial.  A  strict  comphance  with  this  practice  of  having  all  pro- 
ceedings in  (!ourt  in  the  presence  of  counsel,  or  on  notice  to  them, 
unUiss  waived,  is  bettor  than  to  (;ountcnan(;e  violations  thereof 
unless  prejudice  is  shown.     The  state  urgently  insists  that  no  prej- 


STATE    V.    MURPHY  387 

udice  could  have  resulted  from  what  was  done  or  said  in  this  case, 
but  we  shall  not  consider  that  question.  However,  the  fact  that 
the  foreman  said  that  he  thought  they  could  not  agree  Avhen  the 
judge  first  spoke  to  them,  and  that  they  did  agree  in  five  or  ten 
minutes  thereafter,  would  be  a  stubljorn  fact  for  consideration  if  we 
entered  upon  an  inquiry  as  to  the  effect  upon  the  jury  of  the  words 
spoken  to  them  and  the  visit  to  the  room.  We  think  that  any 
conmiunication  m  this  way  as  to  the  case  should  be  prohibited  and 
held  prejudicial.  It  is  against  the  poHcy  of  the  law  to  indulge  in 
secret  communications  or  conferences  with  the  jury  or  with  jurors 
in  reference  to  the  merits  or  law  of  the  case.  To  determine  in  each 
case  whether  prejudice  resulted  would  be  difficult,  if  not  impossible, 
and  justice  will  be  better  subserved  by  avoiding  such  communica- 
tions entirely.  The  authorities  are  practically  unanimous  in 
condemning  such  communications,  and  in  holding  them  prejudicial 
as  a  matter  of  law. 

In  State  v.  Wroth,  15  Wash.  621,  47  Pac.  106,  the  court  said: 
"  In  the  discharge  of  his  official  duties,  the  place  for  the  judge  is  on 
the  bench.  As  to  him  the  law  has  closed  the  portals  of  the  jury 
room,  and  he  may  not  enter.  The  appellant  was  not  obliged  to 
follow  the  judge  to  the  jury  room  in  order  to  protect  his  legal 
rights,  or  to  see  that  the  jury  was  not  influenced  by  the  presence  of 
the  judge;  and  the  state  cannot  be  permitted  to  show  what  oc- 
curred between  the  judge  and  the  jury  at  a  place  where  the  judge 
had  no  right  to  be,  and  in  regard  to  which  no  official  record  could 
be  made."  In  Hanover  v.  State,  125  Wis.  444,  104  N.  W.  116,  the 
court  said:  "  These  rights  are  clearly  of  an  important  nature,  and 
affect  the  substance  of  a  jury  trial  and  the  right  of  a  party  to  be 
heard  or  to  bring  in  review  every  transaction  of  the  court's  pro- 
ceedings. For  the  attainment  of  the  best  administration  of  j  ustice, 
the  law  requiring  that  all  proceedings  of  courts  be  open  and  pubhc, 
and  in  the  presence  of  the  parties  or  their  representatives,  must  be 
strictly  enforced;  and,  in  case  of  any  infringement  of  this  policy, 
parties  are  not  to  be  put  to  the  burden  of  showing  that  it  in  fact 
injured  them,  even  though  it  be  manifest  that  no  improper  motives 
prompted  the  acts  complained  of."  In  Sargent  v.  Roberts, 
1  Pick.  (:\Iass.)  387,  11  Am.  Dec.  185,  the  court  said,  speaking 
through  Mr.  Chief  Justice  Parker:  "  As  it  is  impossible,  we  think, 
to  complain  of  the  substance  of  the  communication,  the  only  ques- 
tion is  whether  any  communication  at  all  is  proper;  and,  if  it  was 
not,  the  party  against  whom  tiie  verdict  was  is  entitled  to  a  new 
trial.  ...      No  communication  whatever  ought  to  take  place 


388  TRIAL 

between  the  judge  and  the  jury,  after  the  cause  has  been  submitted 
to  them  by  the  charge  of  the  judge  unless  m  open  court.  .  .  . 
The  only  sure  way  to  prevent  all  jealousy  and  suspicion  is  to  con- 
sider the  judge  as  having  no  control  whatever  over  the  case  except 
in  open  court  in  the  presence  of  the  parties  and  their  counsel.  The 
public  interest  requires  that  litigating  parties  should  have  nothing 
to  complain  of  or  suspect  in  the  administration  of  justice,  and  the 
inconvenience  of  the  jurors  is  of  small  consideration  compared  to 
this  great  object.  ...  It  is  better  that  everybody  should  suffer 
inconvenience  than  that  a  practice  should  be  continued  which  is 
capable  of  abuse,  or  at  least  of  being  the  ground  of  uneasiness  and 
jealousy."  See,  also,  Danes  v.  Pearson,  6  Ind.  App.  465,  33  N.  E. 
976;   Du  Gate  v.  Town  of  Brighton,  (Wis.)  114  N.  W.  103. 

The  other  questions  argued  in  the  brief  will  not  probably  arise 
on  another  trial.     Hence  consideration  of  them  is  not  material. 

The  judgment  is  reversed,  a  new  trial  granted,  and  the  cause 
is  remanded  for  further  proceedings.^ 


KNIGHT  V.   THE   INHABITANTS   OF   FREEPORT. 

Supreme  Judicial  Court  of  Massachusetts.     1816. 

[Reported  13  Massachusetts,  218.] 

After  a  verdict  at  the  last  October  term  for  the  plaintiff  in 
review,  and  before  judgment,  the  counsel  for  the  defendants  in 
review  moved  the  court  for  a  new  trial;  on  the  gromid  that  one 
Abel  A.  Briggs,  who  was  a  witness  for  Knight  on  the  trial  of  the 
cause,  after  the  empamieling  of  the  jury  and  before  the  trial, 
applied  to  Justin  Kent,  one  of  the  jurors,  and  stated  to  him  that 
this  cause  was  of  great  consequence  to  him,  Briggs;  and  if  it  went 
against  Knight,  he,  Briggs,  should  have  to  pay  the  costs;  and  that 
the  defending  the  action  was  a  spiteful  thing  on  the  part  of  the 
said  inhabitants  of  Freeport:  the  said  counsel  declaring  that  they 
had  no  knowledge  of  the  said  facts,  until  after  the  jury  had  re- 
turned their  said  verdict.  —  The  juror  testified  to  the  truth  of  the 
foregoing  statement:   and  added  that  Knight  was  not  present  at 

1  See  Sargent  v.  Roberts,  1  Pick.  (Mass.),  337,  11  Am.  Dec.  185;  Moseley  v. 
Washburn,  165  Mass.  417,  43  N.  E.  182;  Berst  v.  Moxom,  163  Mo.  App.  123, 
145  S.  W.  857;  Watertown  Bank  &  Loan  Co.  v.  Mix,  51  N.  Y.  558;  Hurst  v. 
Webster  Mfg.  Co.,  128  Wis.  342,  107  N.  W.  666;  and  a  collection  of  cases  in  a 
note  to  the  principal  case  in  17  L.  R.  A.  (n.  s.),  609.  —  Ed. 


SCOTT   V.    TUBES  389 

the  time,  nor  did  the  juror  know  that  he,  Knight,  had  any  knowl- 
edge thereof.  —  And  it  was  admitted  that  the  said  Briggs  was 
Knight's  son-in-law,  and  did  assist  him  in  supporting  his  cause. 

By  the  court.  Too  much  care  and  precaution  cannot  be  used  to 
preserve  the  purity  of  jury  trials.  The  attempt  to  influence  the 
juror  in  this  case  was  grossly  improper,  and  ought  to  be  discoun- 
tenanced. It  is  not  necessary  to  shew  that  the  mmd  of  the  juror, 
thus  tampered  with,  was  mfluenced  by  this  attempt.  Perhaps 
it  is  not  in  his  power  to  say  whether  he  was  influenced  or  not.  If 
he  was,  there  is  sufficient  cause  to  set  aside  the  verdict;  and  if  he 
was  not,  and  the  party  who  has  gained  the  verdict  has  a  good 
cause,  he  will  still  be  entitled  to  a  verdict  upon  another  trial.  We 
cannot  be  too  strict  in  guarding  trials  by  jury  from  improper 
influence.  This  strictness  is  necessary  to  give  due  confidence  to 
parties  in  the  results  of  their  causes:  and  every  one  ought  to  Iviiow 
that  for  any,  even  the  least,  intermeddling  with  jurors,  a  verdict 
will  always  be  set  aside.  New  trial  ordered.^ 


SCOTT  V.   TUBES. 
Supreme  Court  of  Colorado.     1908. 
[Reported  43  Colorado,  221.] 

Steel,  C.  J.  The  action  was  brought  under  the  statute  entitled 
"  Eminent  Domain,"  and  had  for  its  purpose  the  condemnation  of 
the  plaintiff  in  error's  land  to  the  use  of  the  defendant  in  error  for 
an  irrigating  canal.  A  jury  assessed  the  plaintiff's  damages  at 
forty  dollars.  Judgment  was  entered  upon  the  verdict.  The 
costs,  amounting  to  $303.50,  were  taxed  against  the  plaintiff  in 
error. 

Several  assignments  of  error  are  discussed  in  the  brief,  but  we 
shall  ignore  all  but  one,  that  relating  to  the  improper  conduct  of  the 
jury.  Before  proceeduig  to  a  consideration  of  the  assignment  of 
error  mentioned,  we  direct  attention  to  the  opinion  of  this  court 
in  the  case  Colorado  Fuel  &  Iron  Co.  v.  Four  Mile  Raihvay  Co.,  29 
Colo.  90,  wherein  the  statutes  providing  for  the  summoning  of  a 
jury  in  proceedings  under  the  "  Eminent  Domain  "  act  are  con- 
strued. 

Upon  the  day  set  for  the  hearing,  at  the  request  of  petitioner  it 
was  ordered  that  the  jury  inspect  the  premises  sought  to  be  con- 

1  See  also  Bowler  v.  Washington,  62  Me.  302.  —  Ed. 


390  TRIAL 

demned.  After  the  examination  of  the  premises  and  before  return- 
ing to  the  court-room,  four  of  the  jurors,  apart  from  the  officer  in 
charge  of  the  jury,  went  to  a  saloon  in  company  of  the  petitioner, 
defendant  m  error  here,  and  at  his  invitation  drank  with  him  at  the 
bar  of  the  saloon.  This  was  conclusively  shown  by  the  affidavits 
filed  in  support  of  the  motion  for  a  new  trial.  Two  of  the  jurors 
state  in  their  affidavits  that  the  petitioner  took  them  to  a  saloon 
and  treated  them,  but  that  their  verdict  was  not  mfluenced  thereby, 
and  that  they  did  not  know  they  had  been  doing  wrong.  The 
court  offered  to  set  aside  the  verdict  and  to  grant  a  new  trial  upon 
the  payment  of  the  costs  by  the  respondent,  but  the  respondent 
refused  to  take  a  new  trial  upon  the  terms  proposed.  Judgment 
was  then  entered,  and  the  respondent  appealed. 

A  new  trial  should  have  been  granted,  and  the  petitioner  should 
have  been  required  to  pay  the  costs.  Such  action  on  the  part  of 
the  petitioner  and  the  jurors  cannot  be  tolerated,  and  to  excuse 
such  conduct  would  be  to  render  a  trial  in  a  court  of  justice  a  farce. 
It  may  be  that  the  petitioner  and  jurors  were  entirely  innocent  of 
any  wrong  intent,  and  that  no  wrong  or  injustice  was  in  fact  done, 
but  the  opportmiity  for  wrong-doing  under  the  conditions  shoA\Ti 
in  the  affidavit  is  so  great  that  we  must,  in  order  to  maintain  the 
integrity  of  judicial  procedure,  reverse  the  case.  Jurors  who  sepa- 
rate from  the  other  jurors  and  the  officer  in  whose  charge  they  are 
and  accept  entertainment  from  one  of  the  parties  while  they  are 
considering  the  case  are  guilty  of  such  misconduct  that  a  verdict 
rendered  by  them  has  not  the  appearance  even  of  being  fair  and 
impartial.  And  a  party  who  so  far  forgets  his  position  as  a  litigant 
as  to  furnish  entertainment  for  jurors  who  are  to  pass  upon  the 
merits  of  the  controversy  in  which  he  is  engaged  should  not  com- 
plain if  a  verdict  in  his  favor  by  jurors  with  whom  he  has  been  in 
such  close  communication,  and  to  whom  he  has  furnished  drink,  is 
set  aside  on  motion  of  his  adversary.  Nor  should  the  court  con- 
sider whether  the  verdict  was  or  was  not  influenced  by  the  peti- 
tioner. The  conduct  complained  of  is  so  manifestly  unproper 
that  there  is  but  one  course  open.  Nor  shall  we  consider  what 
other  courts  have  done  under  similar  circumstances.  Questions 
like  these  carmot  he  determined  by  the  weight  of  authority,  unless 
there  be  a  doubt  in  our  minds  as  to  the  course  for  us  to  pursue; 
and  as  no  doubt  exists,  we  shall  reverse  the  judgment.       Reversed.^ 

Mr.  Justice  Goddard  and  Mr.  Justice  Bailey  concur. 

1  See  Burko  v.  McDonald,  .3  Ida.  296;   Vane  v.  Evanston,  L50  111.  616,  37 
N.  E.  901;  Drainage  Commissioners  v.  Knox,  2;57  111.  148,  86  N.  E.  636;  Tripp 


THOMAS   V.    CHAPMAN  391 

THOMAS   V.   CHAPMAN  and  Another. 

Supreme  Court  of  New  York.     1865. 

[Reported  45  Barbour,  98.] 

Motion  to  set  aside  a  verdict  on  account  of  the  misconduct  of 
the  officer  having  charge  of  the  jur^^ 

Sutherland,  J.  With  some  hesitation  I  have  come  to  the 
conclusion  that  the  verdict  in  this  case  must  be  set  aside  for  mis- 
conduct of  the  officer  having  the  jurj^  in  charge.  Bird,  one  of  the 
jurors,  in  his  affidavit,  states  expressly,  that  the  officer  ''  stated 
to  them  (the  jury),  that  the  court  had  adjourned  and  left  orders 
for  him  (said  officer),  to  lock  up  the  jury  and  keep  them  all  night, 
unless  they  agreed  upon  a  verdict;  that  the  case  was  clear  for  the 
'plaintiff,  and  that  the  jury  had  better  agree  and  go  home,  that  if  they 
did  not,  soon,  he  should  lock  the  jury  up  for  the  night."  That  on 
several  occasions  in  the  course  of  the  afternoon,  the  officer  made 
"  the  amiomicements,  threats  or  intimations  in  about  the  words 
above  stated."  It  is  also  stated  m  the  affidavit  of  Bird,  that  he 
was  quite  unwell  at  the  time,  and  but  for  the  prospect  or  fear  of 
being  locked  up  for  the  night,  he  never  would  have  agreed  to  the 
verdict,  which  was  rendered  for  the  plamtiff  for  S2348.07.  Thomas, 
another  of  the  jurors,  states  in  his  affidavit  that  the  statement  in 
Bird's  affidavit  as  regards  the  words  used  by  the  officer,  is  true, 
and  that  he  "  would  never  have  agreed  to  the  verdict,  had  it  not 
been  for  the  prospect  of  being  kept  up  all  night,"  &c. 

The  affidavit  of  the  officer  having  charge  of  the  jury  is  not 
entirely  satisfactorJ^  He  states  that  the  jury  retired  after  the 
charge  of  the  court,  at  about  half  past  twelve  o'clock;  that  the 
court  adjourned  about  three  o'clock;  that  he  "  did  not  have  any 
communication  with  the  jurors,  or  any  of  them,  except  to  ask  them 
if  they  had  agreed  upon  their  verdict,  or  to  listen  to  remarks  or 
mquiries  which  they  made  to  him;  that  he  did  not  say  anything 
to  them,  in  reference  to  the  merits  of  the  case  or  their  deliberations  as 
jurymen."     He  states,  that  upon  informing  the  jury  that  the  Judge 

V.  County  Comr's,  2  Allen  (Mass.),  556;  Kellogg  v.  Wilder,  15  Johns.  (X.  Y.), 
455  {semhle,  though  both  parties  treated  and  with  court's  consent);  McGill 
Bros.  V.  Seaboard  Air  Line  Ry.,  75  S.  C.  177,  55  S.  E.  216.  And  see  a  note  to 
the  principal  ca.se  in  19  L.  R.  A.  (n.  s.),  733. 

^^■hen  the  value  of  cigars  was  in  issue,  the  treating  of  the  jury  to  cigars  by  a 
party  is  clearly  ground  for  new  trial.  See  Piatt  v.  Threadgill,  80  Fed.  192  — 
Ed. 


392  TRIAL 

had  directed  him  to  allow  them  to  go  out  for  refreshments  at  five 
o'clock  "  one  of  the  jurors  asked  deponent  what  he  would  do  with 
them  after  that;  whether  he  would  lock  them  up  all  night;  that 
deponent  would  not  tell  them  what  his  instructions  were  on  that 
point,  and  passed  it  off  by  saying,  /  suppose  so,''  &c. 

It  is  true,  the  officer  denies,  in  his  affidavit,  that  he  said  to  the 
jury  what  Bird  and  Thomas,  the  two  jurymen,  say  he  said;  or 
that  he  used  words  of  like  tenor  and  effect;  but  I  think  his  affidavit 
contains  a  confession  that  he  did  say  what  he  ought  not  to  have 
said. 

The  affidavit  of  the  other  ten  jurors  is  a  mere  general  affidavit, 
that  the  statements  in  the  officer's  affidavit  as  to  the  conduct  of  the 
officer,  and  his  communications  with  the  jury,  are  true.  Conced- 
ing this  affidavit  to  have  been  made  m  the  most  perfect  good  faith, 
it  probably  only  amounts  to  this,  viz. :  that  the  ten  jurors  did  not 
hear  or  may  not  have  heard,  the  statements  of  the  officer  men- 
tioned in  the  affidavits  of  the  other  two  jurymen. 

Affidavits  of  jurors  will  not  be  received  to  show  their  own  mis- 
conduct, or  the  misconduct  of  their  fellows  (Clum  v.  Smith,  5  Hill, 
560);  but  I  thmk  there  is  no  doubt  that  they  are  admissible  to 
show  the  misconduct  of  a  party,  or  of  the  officer  having  charge  of 
them.     See  Reynolds  v.  Champlain  Trans.  Co.,  9  How.  Pr.  R.  7. 

That  portion  of  the  affidavits  of  the  two  jurors  which  goes  to 
show  that  they  agreed  to  the  verdict  only  in  consequence  of  the 
statements  of  the  officer,  is  not  probably  admissible  for  that  purpose; 
(Taylor  v.  Everett,  2  How.  Pr.  R.  23),  but  it  is  not  necessary  for 
the  defendant.  Chapman,  to  show  that  the  verdict  was  in  fact 
influenced  by  the  statements  of  the  officer.  It  is  sufficient,  I 
think,  for  him  to  show  that  there  is  reason  to  suspect  that  the 
statements  were  made,  and  if  made,  that  they  were  likely  or 
calculated  to  influence  the  verdict.  Wilson  v.  Abrahams,  1  Hill, 
211.  Knight  v.  Inhabitants  of  Freeport,  17  Mass.  R.  218.  Coster 
V.  Merest,  3  Brod.  &  Bing,  257.     7  C.  L.  Rep.  433. 

The  motion  to  [set]  aside  the  verdict  for  misconduct  of  the  officer 
must  be  granted,  with  $10  costs,  to  abide  the  event  of  the  action. 
Of  course  it  will  be  necessary  to  decide  the  motion  for  a  new  trial 
on  the  case  made.^ 

1  Compare  People  v.  Sheldon,  156  N.  Y.  268,  50  N.  E.  840.  —  Ed. 


DARLING  V.  NEW  YORK,   PROVIDENCE  AND  BOSTON  R.  R.  CO.        393 

DARLING,  Administrator,  v.  THE  NEW  YORK,  PROVI- 
DENCE &   BOSTON   RAILROAD   COMPANY. 

Supreme  Court  of  Rhode  Island.     1892. 

[Reported  17  Rhode  Inland,  708.] 

Matteson,'C.  J.  The  defendant  petitions  for  a  new  trial  on 
several  grounds,  of  which  three  only  were  urged  at  the  hearing, 
viz.:  first,  that  the  verdict  was  against  the  evidence;  second,  that 
the  court  erred  in  its  instructions  to  the  jury;  third,  that  the  jury 
were  influenced  in  their  decision  by  a  communication  to  them  by 
the  officer  in  charge  of  them.^  .  .  . 

After  the  case  had  gone  to  the  jury,  and  they  had  been  in  their 
room  about  an  hour  deliberating  upon  their  verdict,  the  judge 
directed  the  officer  in  charge  of  them  to  inquire  of  the  foreman  if 
there  was  a  prospect  of  an  early  agreement,  as  he  wished  to  go  out 
to  dinner  at  a  quarter  of  six.  The  officer  conveyed  the  message  to 
the  foreman,  who  answered  that  he  would  laiock  by  quarter  of  six 
and  let  the  court  loiow  whether  the  jury  had  agreed.  Thereupon 
the  officer  said  to  the  foreman,  "  If  you  do  not,  you  can  take  your 
own  time,"  and  jokingly  added,  "  all  night,  if  necessary."  The 
defendant  contends  that  this  remark  of  the  officer  operated  as  a 
threat  to  the  jury  that,  unless  they  agreed  before  a  quarter  of  six, 
they  would  be  kept  out  all  night,  or  at  least  until  they  should 
agree  within  that  time,  and  was  therefore  such  a  constraint  put 
upon  them  as  to  render  their  verdict  void ;  and  it  further  contends 
that  it  is  not  required  to  show  affirmatively  that  such  communica- 
tion tended  to  its  injury,  but  that  such  communication  was  so  dan- 
gerous and  impolitic  that  it  should  be  presumed  conclusively  that 
harm  was  done.  There  are  cases  which  support  this  claim.  Cole 
V.  Swan,  4  Greene,  Iowa,  32;  Obear,  Executor,  v.  Gray,  68  Ga.  182. 
But  the  weight  of  authority,  and  the  better  opinion  as  it  seems  to 
us,  is  to  the  effect  that,  unless  the  communication  from  the  officer 
to  the  jury  had  a  manifest  tendency  to  influence  the  jury  improp- 
erly against  the  unsuccessful  partj^,  or  was  such  that  prejudice 
has  resulted  to  such  i:)arty,  it  furnishes  no  ground  for  a  new  trial. 
Thus,  in  Wiggin  v.  Downer,  67  How.  Pr.  65,  it  was  held  that  the 
expression  to  the  jury  by  the  officer  in  charge  of  them  of  an  opinion 
that  unless  they  agreed  they  would  be  detained  until  the  next  day 
at  noon,  though  improper,  was  not  such  an  irregularity  as  should 
avoid  the  verdict,  and  did  not  amount  to  an  illegal  constraint. 

'  Only  the  opinion  of  the  court  on  the  third  ground  is  given.  —  Ed. 


394  TRIAL 

And,  again,  in  Leach  v.  Wilbur,  9  Allen,  212,  it  appeared  that 
between  four  and  five  o'clock  in  the  morning,  the  jury  having 
retired  to  their  room  about  five  o'clock  of  the  preceding  day, 
Thursday,  one  of  the  jurors  asked  the  officer  having  them  in  charge 
how  long  the  court  would  keep  them  together,  and  he  replied  that  he 
did  not  know,  but  they  would  have  to  stay  until  Saturday,  and  that 
a  little  after  five  o'clock  the  jury  agreed.  It  was  held  that  a  new 
trial  would  not  be  granted.  And  see  Reins  v.  The  People,  30  111. 
256;  Price  v.  Lambert,  3  N.  J.  Law,  122;  Pope  &  Jacobs  v.  The 
State,  36  Mass.  121;  McGuire  v.  State,  10  Tex.  App.  125.  The 
officious  intermeddlmg  of  the  officer  was  highly  reprehensible,  and 
might  have  subjected  him  to  punishment;  it  was  a  violation  of  his 
duty  and  of  his  oath;  but  it  appears  to  have  been  thoughtless, 
without  any  design  to  favor  either  party,  and  it  had  no  manifest 
tendency  to  prejudice  the  defendant;  nor  does  it  appear  that 
prejudice  has  resulted  from  it  to  the  defendant.  The  defendant, 
it  is  true,  has  produced  the  affidavit  of  a  juror  to  his  belief  that  the 
message  of  the  court  and  the  remark  of  the  officer  influenced  the 
jury  in  giving  a  verdict  for  the  plaintiff,  as,  immediately  after, 
certam  of  the  jury  who  had  been  for  the  defendant  changed  and 
agreed  to  a  verdict  for  the  plaintiff.  But,  apart  from  the  considera- 
tion that  the  affidavit  of  a  juror  is  not  competent  evidence  to  prove 
what  takes  place  in  the  jury  room  for  the  purpose  of  impeaching 
the  verdict,  the  affidavit  is  only  to  the  belief  of  the  juror  based 
upon  a  fact  by  no  means  conclusive. 

Defendant's  petition  for  a  new  trial  denied  and  dismissed. 


PAGE  V.  WHEELER  et  al 

Superior  Court  of  Judicature  of  New  Hampshire. 

1829. 

[Reported  5  New  Ham-pshire,  91.] 

Assumpsit  for  goods  sold  and  delivered,  between  the  24th 
December,  1826,  and  the  13tli  June,  1827. 

The  cause  was  tried  here  upon  the  general  issue,  at  October 
term,  1828. 

It  was  admitted  that  the  goods  mentioned  in  the  declaration 
were  sold  to  Jonathan  Wheeler,  one  of  the  defendants  by  the 
plaintiff,  and  that  they  were  delivered  upon  the  credit  of  the  said 
Jonathan.  But  there  was  evidence  tending  to  prove,  that  Jonathan 


PAGE    V.    WHEELER  395 

Wheeler  was  indebted  to  Stephen  Wheeler,  the  other  defendant,  — 
that  Stephen  knew  that  Jonathan  must  shortly  fail  —  that 
Stephen  advised  Jonathan  to  go  to  Boston,  where  he  had  credit, 
and  buy  goods,  and  let  him  have  them  to  pay  what  was  due  to 
him  from  Jonathan  —  that  they  went  to  Boston  together,  and 
Stephen  there  held  out  that  Jonathan  was  in  good  credit  —  that 
Jonathan  bought  goods  of  the  plaintiff  —  that  large  quantities  of 
goods  were  transferred  from  Jonathan  to  Stephen,  and  that 
Jonathan  failed  and  run  away  wholly  insolvent. 

Upon  this  evidence,  it  was  left  to  the  jury  to  say  whether 
Stephen,  for  the  purpose  of  securing  his  own  debt,  combined  with 
Jonathan  to  procure  these  goods  on  Jonathan's  credit,  and  for  that 
purpose  held  out  that  Jonathan  was  a  man  in  good  credit,  when  he 
knew  the  fact  to  be  otherwise,  and  the  jury  were  instructed  that  if 
the  goods  were  thus  obtained,  the  defendants  might  be  considered 
as  partners  in  the  purchase,  and  that  both  were  liable. 

The  jury  having  returned  a  verdict  in  favor  of  the  defendants, 
L.  Chamberlain,  for  the  plaintiff,  moved  for  a  new  trial  on  the 
ground,  that  a  large  number  of  papers  purporting  to  be  bills  of 
goods  purchased  by  Jonathan  Wheeler,  of  divers  persons  in  the 
years  1826  and  1827,  and  also  sundry  papers  purporting  to  be  bills 
of  goods  purchased  by  Jonathan  and  J.  F.  Wheeler,  in  the  years 
1825  and  1826,  were  delivered  to  the  jury,  when  they  retired  to 
consider  of  their  verdict,  the  same  papers  never  having  been  read 
during  the  trial  nor  seen  by  the  plaintiff's  counsel. 

The  fact  that  such  papers  went  thus  to  the  jury  was  not  dis- 
puted. 

Richardson,  C.  J.  delivered  the  opinion  of  the  court. 

If  it  appeared  in  this  case,  that  the  papers,  which  were  delivered 
to  the  jury  without  being  read  upon  the  trial,  were  designedly  so 
delivered  by  the  party,  who  obtained  the  verdict,  we  should  not 
stop  to  enquire,  whether  the  papers  were  material  or  not,  but 
should  at  once  set  aside  the  verdict  as  a  proper  punishment  for  the 
misconduct  of  the  party.  5  Pick.  296,  Hix  v.  Drury;  3  B.  &  B. 
272,  Coster  v.  Merest. 

But  we  see  nothing,  that  affords  any  reasonable  ground  to 
suspect,  that  the  papers  were  handed  to  the  jury  with  any  im- 
proper views.  It  is  highly  probable,  that  they  went  to  the  jury 
inadvertently  and  by  mistake  among  other  papers. 

If  a  paper  goes  by  mistake  to  the  jury,  but  they  never  examine  it, 
the  verdict  is  not  to  be  set  aside  on  that  account.  3  Johns.  Rep. 
252,  Hackley  v.  Hastie. 


396  TRIAL 

In  this  case,  as  there  is  no  evidence  to  the  contrary,  we  must 
presume  that  the  jury  examined  all  the  papers  which  were  de- 
livered to  them. 

The  rule  seems  to  be,  that,  if  material  papers  not  read  in  evidence 
are  handed  to  the  jury  by  mistake,  this  is  a  sufficient  cause  for 
granting  a  new  trial.  And  it  is  not  competent  to  the  party  who 
has  obtained  the  verdict,  to  prove  by  the  j  urors  that  they  were  not 
influenced  by  the  papers  in  finding  their  verdict;  but  the  court 
must  be  governed  by  the  tendency  of  the  papers  apparent  from  the 
face  of  them.     5  Mass.  Rep.  405,  Whitney  v.  Whitman. 

The  question  then  is,  were  the  papers  which  went  to  the  jury  by 
mistake  in  this  cause  so  wholly  immaterial,  that  they  cannot  be 
presumed  to  have  had  any  influence  upon  the  verdict  ? 

We  are  of  opinion,  that  those  papers  were  wholly  immaterial. 
It  was  not  pretended  on  the  part  of  the  plaintiff  that  there  was  any 
partnership  between  Jonathan  and  Stephen  Wheeler,  or  that  they 
were  in  any  way  connected  in  business  except  in  relation  to  the 
goods  purchased  just  before  Jonatlian  absconded.  The  bills  of 
parcels  then  could  have  no  tendency  to  shew  anything  but  what 
was  conceded  —  that  Stephen  had  been  making  purchases  in  his 
own  name  up  to  the  time  when  the  goods,  mentioned  in  the  plain- 
tiff's declaration,  were  purchased.  Judgment  on  the  verdict.^ 


VAISE  V.   DELAVAL. 

King's  Bench.     1785. 

[Reported  1  Term  Reports,  11.] 

Upon  a  motion  by  Law  for  a  rule  to  set  aside  a  verdict,  upon  an 
affidavit  of  two  jurors,  who  swore  that  the  jury,  being  divided  in 
their  opinion,  tossed  up,  and  that  the  plaintiff's  friends  won,  in 
which  was  cited.  Hale  v.  Gove,  1  Stra.  642. 

Per  Lord  Mansfield,  Ch.  J.  The  Court  cannot  receive 
such  an  affidavit  from  any  of  the  jurymen  themselves,  in  all  of 
whom  such  conduct  is  a  very  high  misdemeanor:   but  in  every 

1  See  Hraha  v.  Maple  Block  Coal  Co.,  154  la.  710,  135  N.  W.  406;  Hix  v. 
Drury,  5  Pick.  (Mass.),  290;  O'Brien  v.  Merchants'  Ins.  Co.,  48  How.  Pr. 
(N.  Y.),  448;  Pittsburgh  ;;.  Pittsburgh  Rys.  Co.,  2)34  Pa.  223,  83  Atl.  273,  Ann. 
Cas.  1913  C.  933. 

For  the  statutes  in  the  several  states  on  this  subjeiit,  see  2  Thompson,  Trials, 
2d  ed.,  sec.  2595.  —  Ed. 


WRIGHT    V.    ABBOTT  397 

such  case  the  Court  must  derive  their  knowledge  from  some  other 
source;  such  as  from  some  person  having  seen  the  transaction 
through  a  window,  or  by  some  such  other  means.    Rule  refused. 


WRIGHT   V.   ABBOTT. 

Supreme  Judicial  Court  of  Massachusetts.     1894. 

[Reported  160  Massachusetts,  395.] 

Motion  for  a  new  trial  of  an  action  of  replevin,  on  the  ground  of 
misconduct  of  the  jury,  which  consisted  by  agreement  of  eleven 
jurors,  who  returned  a  verdict  for  the  plaintiff  in  the  Superior 
Court. 

At  the  hearing  upon  the  motion,  before  Richardson,  J.,  the 
defendant  called  as  a  witness  John  W.  Tilton,  a  deputy  sheriff, 
who  had  the  charge  of  the  jury  during  their  deliberations  on  the 
case  in  their  room;  and,  against  the  objection  of  the  plaintiff,  he 
testified  substantially  as  follows : 

"  I  heard  their  deliberations.  I  overheard  what  was  said  by 
them  in  the  jury  room.  I  heard  the  jury  discussing  the  case,  and 
I  heard  them  state  the  result  of  a  ballot.  I  heard  one  juror  say 
that  eleven  ballots  should  be  put  into  a  hat,  eight  marked  for  the 
defendant,  three  marked  for  the  plaintiff,  that  one  member  of  the 
jury  should  be  blindfolded  and  draw  out  a  ballot,  and  that  the  jury 
should  agree  upon  the  result  of  the  ballots  so  drawn  out;  then  I 
heard  them  getting  ready  to  take  the  ballot  and  to  do  it;  there  was 
a  silence  or  pause  after  that  during  which  something  was  being 
done  apparently;  and  I  heard  the  matter  talked  over  by  them  after 
it  was  done,  and  I  heard  the  result.  I  heard  it  stated  by  one  of  the 
jurors  that  the  ballot  drawn  out  was  for  the  plaintiff.  I  heard 
these  words,  '  The  ballot  drawn  out  is  for  the  plaintiff.'  Shortly 
after,  in  a  few  minutes,  the  foreman  rapped  upon  the  door,  and 
said  the  jury  had  agreed.  The  jury  immediately  came  into  the 
court  and  rendered  the  verdict." 

It  appeared  that  the  witness  was  not  actually  inside  the  jury 
room  when  he  heard  their  conversation  testified  to. 

The  plamtiff  asked  the  judge  to  rule  that  the  evidence  of  Tilton 
was  incompetent,  and  inadmissible  on  the  motion  for  a  new  trial; 
and  that  it  was  insufficient  to  set  aside  the  verdict. 

The  judge  refused  so  to  rule;  found  that  chance  or  lot  was 
resorted  to  by  the  jury  in  making  up  tiunr  verdict,  and  that,  before 


398  TRIAL 

it  was  done,  they  had  agreed  to  abide  by  the  result  of  drawing  lots 
as  to  the  verdict  which  they  should  render;  and  set  aside  the  ver- 
dict, and  granted  a  new  trial. 

The  plaintiff  alleged  exceptions. 

Field,  C.  J.  The  single  question  in  this  case  is  whether,  on  a 
motion  for  a  new  trial  on  account  of  the  alleged  misconduct  of  the 
jury,  it  is  competent  for  a  deputy  sheriff  who  had  the  charge  of  the 
jury  during  their  deliberations  in  the  jury  room  to  testify  to  what 
he  heard  said  and  done  by  the  jury,  in  the  jury  room,  for  the  pur- 
pose of  showing  that  the  jury  decided  the  case  by  lot,  or  by  the 
drawing  of  a  ballot  from  a  hat  in  which  ballots  had  been  put,  some 
marked  for  the  plaintiff  and  some  for  the  defendant. 

It  is  certainly  not  the  duty  of  an  officer  in  cliarge  of  a  jury  to 
listen  to  the  deliberations  of  a  jury  in  the  jury  room;  but  if  he 
does,  his  testimony  carniot  be  excluded  on  the  ground  that  his 
knowledge  was  obtained  in  this  manner,  if  it  is  otherwise  compe- 
tent. The  rule  excluding  testimony  of  the  conduct  of  jurors  in 
the  jury  room  when  deliberating  upon  a  verdict  ought  to  have 
some  limits.  It  seems  that,  in  England,  it  has  been  finally  settled 
that  the  affidavit  of  a  juror  will  not  be  received  to  show  that  the 
verdict  was  determined  by  lot.  Vaise  v.  Delaval,  1  T.  R.  11. 
Owen  V.  Warl^urton,  1  B.  &  P.  326.  Straker  v.  Graham,  7  Dowl. 
Pr.  Cas.  223,  225.  The  weight  of  authority  in  this  country  also 
is  that  the  affidavits  or  the  testimony  of  jurors  to  show  such  a  fact 
will  not  be  received.  Dana  v.  Tucker,  4  Johns.  487.  Cluggage  v. 
Swan,  4  Binn.  150.  Brewster  v.  Thompson,  Coxe,  32.  Grinnell 
V.  Phillips,  1  Mass.  530,  is  regarded  as  overruled  in  Woodward  v. 
Leavitt,  107  Mass.  453,  461,  462.  It  has  always  been  held  that, 
if  a  verdict  is  obtained  by  resorting  to  chance  or  by  drawing  lots, 
it  will  be  set  aside.  Mitchell  v.  Ehle,  10  Wend.  595.  Dormer  v. 
Palmer,  23  Cal.  40.  Ruble  v.  McDonald,  7  Iowa,  90.  Birchard 
V.  Booth,  4  Wis.  67.  Dorr  v.  Fenno,  12  Pick.  521.  Forbes  v. 
Howard,  4  R.  I.  364.  In  Vaise  v.  Delaval,  ubi  supra,  where  a 
verdict  was  obtained  by  tossing  up,  Lord  Mansfield  said:  "  The 
court  camiot  receive  such  an  affidavit  from  any  of  the  jurymen 
themselves,  in  all  of  whom  such  conduct  is  a  very  high  misde- 
meanor ;  but  in  every  such  case  the  court  must  derive  their  knowl- 
edge from  some  other  source;  such  as  from  some  person  having 
seen  the  transaction  through  a  window,  or  by  some  such  other 
means." 

In  Wilson  v.  Bcrryman,  5  C'al.  44,  the  verdict  was  what  is  called 
a  quotient  verdict,  and  the  court,  while  conceding  that  the  affidavit 


DANA    V.    TUCKER  399 

of  a  juror  could  not  be  received,  admitted  the  affidavit  of  the  under 
sheriff  that  the  affidavit  of  the  juror  was  true. 

Either  the  law  that  a  verdict  must  be  set  aside  if  determined  by 
lot  is  nugatory  because  the  fact  cannot  be  proved,  or  there  must  be 
a  possible  means  of  proving  it.  If,  on  grounds  of  public  policy, 
the  affidavits  or  the  testimony  of  jurors  concerning  what  took 
place  in  the  jury  room  is  excluded,  as  well  as  evidence  of  their 
subsequent  declarations  on  the  subject,  still  w^e  are  of  opmion  that 
independent  evidence  should  be  admitted,  and  that  the  conse- 
quences to  be  apprehended  from  admitting  such  evidence  are  less 
harmful  than  the  consequences  of  forbiddmg  all  inquiry  into  such  a 
matter.  We  thmk  that  the  presiding  justice  properly  refused  to 
rule  as  requested. 

Exceptions  overruled. 


DANA  V.   TUCKER. 
Supreme  Court  of  Judicature  of  New  York.     1809. 

[Reported  4  Johnson's  Reports,  487.] 

This  was  an  action  for  a  breach  of  promise  of  marriage,  tried  at 
the  last  Madison  circuit,  when  the  jury  found  a  verdict  for  the 
plamtiff,  for  439  dollars  and  58  cents. 

Gold  now  moved  to  set  aside  the  verdict,  for  the  misbehaviour 
of  the  jury.  He  read  the  affidavit  of  the  constable,  who  was 
sworn  to  attend  the  jury,  while  they  retired  to  defiberate  on  their 
verdict,  who  stated,  that  the  jurors  agreed,  that  each  of  them 
should  mark  down  such  sum  as  he  thought  fit  to  find,  and  the  sum 
total  being  divided  by  twelve,  the  quotient  should  be  the  verdict; 
and  that  the  verdict  was  so  ascertained. 

Similar  affidavits  of  two  of  the  jurors,  were  also  read. 

N.  Williams,  contra,  read  the  affidavits  of  two  other  jurors 
stating,  that  the  jury,  after  some  deliberation,  unanimously  agreed 
to  find  a  verdict  for  the  plaintiff;  that  each  juror  then  privately 
marked  the  sum  he  was  mclined  to  give;  eight  of  them  marked 
500  dollars,  one  600  dollars,  and  one  50  dollars.  The  sums  so 
marked  were  added  together,  and  the  amount  divided  by  twelve 
and  the  sum  produced  by  the  division,  they,  afterwards,  agreed 
should  be  their  verdict.  After  the  verdict  was  delivered  in  court 
m  the  usual  form,  the  jury  were  polled,  and  each  of  the  jurors,  on 
being  asked  whether  he  agreed  to  the  A-erdict,  declared  his  assent 


400  TRIAL 

Gold  objected,  that  these  affidavits  of  the  jurors  could  not  be 
read.  He  cited  the  case  of  Owen  and  another  v.  Warburton 
(1  Bos.  Pull.  &  N.  S.  326). 

Williams  observed,  that  in  the  case  of  Smith  v.  Cheetham  (3 
Caines,  57)  the  court  allowed  the  affidavits  of  jurors  to  be  read; 
and  that  it  would  be  unreasonable  and  unjust,  to  permit  the  solemn 
verdict  of  a  jury  to  be  set  aside  on  the  affidavit  of  an  officer,  as  to 
their  misconduct,  without  allowing  the  jurors  to  be  heard  in  de- 
fence of  their  verdict.  In  the  case  of  Lawrence  v.  Boswell,  Sayer, 
100,  where  seven  of  the  jurors  voted  for  the  verdict,  and  the  other 
five  made  no  objection,  when  the  verdict  was  given,  the  court 
refused  to  set  it  aside. 

Per  Curiam.  The  better  opinion  is,  and  such  is  the  rule  adopted 
by  the  court,  that  the  affidavits  of  jurors  are  not  to  be  received  to 
impeach  a  verdict ;  but  they  may  be  admitted  in  exculpation  of  the 
jurors,  and  in  support  of  their  verdict.  Rejecting  the  affidavits 
of  the  two  jurors  against  the  verdict,  there  is  the  affidavit  of  two 
other  jurors  in  favour  of  the  verdict,  which  must  outweigh  that  of 
the  constable.  If  the  jurors  previously  agree  to  a  particular  mode 
of  arriving  at  a  verdict,  and  to  abide  by  the  contingent  result,  at 
all  events,  without  reserving  to  themselves  the  liberty  of  dissenting, 
such  a  proceeding  would  be  improper;  but  if  the  means  is  adopted 
merely  for  the  sake  of  arriving  at  a  reasonable  measure  of  damages, 
without  binding  the  jurors  by  the  result,  it  is  no  objection  to  the 
verdict.  Such  appears  to  have  been  the  case  here;  and  after  the 
result  of  the  division  was  known,  they  individually  assented  to 
the  sum,  as  their  verdict.     The  motion  must  be  denied. 

Rule  refused.^ 

1  See  Campbell  v.  Brown,  85  Kan.  527,  117  Pac.  1010. 

For  a  discussion  of  compromise  verdicts,  see  Simmons  v.  Fish,  210  Mass. 
563,  97  N.  E.  102,  Ann.  Cas.  1912  D.  588,  where  the  court,  Rugg,  C.  J.,  said: 
"  A  verdict  which  is  the  result  of  real  harmony  of  thought  growing  out  of  open- 
minded  discussion  l)etween  jurors  with  a  willingness  to  be  convinced,  with  a 
proper  regard  for  opinions  of  others  and  with  a  reasonable  distrust  of  individual 
views  not  shared  by  their  fellows  and  a  fair  yielding  of  one  reason  to  a  stronger 
one,  each  having  in  mind  the  great  desirability  of  unanimity  both  for  the  parties 
and  for  the  public,  is  not  open  to  criticism.  But  a  verdict  which  is  reached 
only  by  the  surrender  of  conscientious  convictions  upon  one  material  issue  by 
some  jurors  in  return  for  a  relinquishment  by  others  of  their  like  settled  opinion 
upon  another  issue  and  the  result  is  one  which  does  not  command  the  approval 
of  the  whole  panel,  is  a  compromise  verdict  founded  upon  conduct  subversive 
of  the  soundness  of  trial  by  jury.  The  jury  room  cannot  be  entered  in  order 
to  ascertain  what  has  transpired  there.  Its  deliberations  are  in  secret,  and 
ordinarily  cannot  be  made  the  subject  of  testimony  by  jurors.  Woodward  v. 
Leavitt,  107  Mass.  453.     What  went  on  there  may  be  learned  by  other  sources. 


AMERICAN    PUBLISHING    COMPANY   V.    FISHER  401 

Section  X. 

The  Verdict. 

AMERICAN   PUBLISHING   COMPANY  v.   FISHER. 

Supreme  Court  of  the  United  States.     1897. 

[Reported  166  United  States,  464.] 

On  April  29,  1891,  plaintiffs  in  error  commenced  an  action  in 
the  District  Court  of  Salt  Lake  County,  Territory  of  Utah,  to 
recover  of  defendants  the  sum  of  $20,844.75  on  a  contract  for 
furnishing  labels,  cards,  etc.  After  answer  the  case  came  on  for 
trial  before  a  jury  on  December  10,  1892,  and  resulted  in  a  verdict 
in  favor  of  the  defendants,  signed  by  nine  jurors,  the  others  not 
concurring.  Judgment  was  rendered  upon  this  verdict,  which  was 
sustained  by  the  Supreme  Court  of  the  Territory.     10  Utah,  147. 

This  action  of  the  trial  and  Supreme  Courts  in  sustaining  a 
verdict  returned  by  only  nine  of  the  jurors  was  under  the  authority 

Wright  V.  Abbott,  160  Mass.  395.  It  is  not  infrequently  possible  to  determine 
with  some  approximation  to  accuracy  what  went  on  there  from  the  result 
produced.  This  is  such  a  case.  It  seems  plain  from  the  record  that  this  was  a 
compromise  verdict.  The  issue  of  hability  was  contested  at  the  trial.  There 
was  no  contest  as  to  the  injury  done.  It  was  such  as  necessitated  the  removal 
of  the  eye  of  a  boy  under  twenty-one  years  of  age.  He  must  go  through  life, 
which  may  be  a  long  one,  disabled  and  disfigured.  The  severity  of  the  injury 
need  not  be  elaborated,  for  it  is  beyond  contention.  The  damages  under  the 
law,  if  hability  was  established,  should  have  been  assessed  not  according  to  the 
degree  of  culpability  of  the  defendant,  but  solely  upon  the  basis  of  compensa- 
tion to  the  plaintiff.  The  single  question  was  what  was  the  money  value  to  be 
awarded  to  a  boy  for  the  loss  of  an  eye.  The  jury  said  $200.  It  is  incon- 
ceivable that  any  jury,  having  agreed  upon  the  issue  of  liability,  should  have 
reached  such  a  determination  as  to  damages.  They  had  no  right  to  consider 
the  subject  of  damages  until  they  had  settled  the  liability  in  favor  of  the 
plaintiff.  The  verdict  itself  is  almost  conclusive  demonstration  that  it  was 
the  result,  not  of  justifiable  concession  of  views,  but  of  improper  compromise  of 
the  vital  principles  which  should  have  controlled  the  decision.  The  inference 
is  irresistible  that  it  could  have  been  reached  only  by  certain  of  the  panel 
conceding  their  conscientious  belief  that  the  defendant  ought  to  prevail  upon 
the  merits  in  order  that  a  decision  might  be  reached." 

As  to  the  admissibility  of  the  affidavits  of  jurors  to  show  their  own  miscon- 
duct, see  Clum  v.  Smith,  5  Hill  (N.  Y.),  560;  Mais  v.  Ruh,  .57  N.  Y.  App.  Div. 
15,  67  N.  Y.  Supp.  1051  (affidavit  of  third  person  as  to  statements  by  jurors); 
Inhabitants  of  Bridgwater  v.  Inhabitants  of  Plymouth,  97  Mass.  382;  Haun  v. 
Wilson,  28  Ind.  296  (waived);  Sanitary  District  v.  Cullerton,  147  111.  385,  35 
N.  E.  723.  But  see  Wright  v.  I.  &  M.  Tel.  Co.,  20  la.  195;  3  Graham  &  Water- 
man, New  Trials,  1429;   Baylies,  New  Trials,  543.  —  Ed. 


402  TRIAL 

of  an  act  of  the  legislature  of  Utah,  approved  March  10,  1892 
(Laws  Utah,  1892,  page  46),  which  provides  as  follows: 

"  Sec.  1.  That  section  3371  of  the  Compiled  Laws  of  1888,  of 
Utah,  is  hereby  amended  so  as  to  read  as  follows: 

"  Sec.  3371.  In  all  civil  cases  a  verdict  may  be  rendered  on  the 
concurrence  therem  of  nine  or  more  members  of  the  jury." 

The  bill  of  exceptions  contains  this  recital  in  respect  to  an 
instruction  and  the  verdict : 

"  The  court  further  charges  you  that  the  concurrence  of  nine 
or  more  members  of  the  jury  is  essential  to  your  verdict,  and  that 
all  who  agree  to  it  should  sign  it. 

"  (To  which  last  charge  the  plaintiff  duly  excepted.) 

"  The  jury  having  retired  and  deliberated,  returned  a  written 
verilict  into  court  on  the  12th  day  of  December,  1892,  '  finding 
the  issues  for  the  defendant,'  signed  by  nine  (9)  of  its  members  — 
the  others  refusing  to  concur  therein.  Which  verdict  the  court 
then  and  there  received  and  caused  to  be  entered  upon  the  record. 

"  To  which  action  of  the  court  the  plaintiff  excepted." 

Mr.  Justice  Brewer,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

As  the  amount  in  controversy  is  over  $5000  this  court  in  any 
view  has  jurisdiction  of  the  case,  and  may  mquire  into  all  matters 
properly  preserved  in  the  record.  The  recital  in  the  bill  of  excep- 
tions shows  that  proper  exceptions  were  taken  to  the  charge  of  the 
court  in  respect  to  the  number  of  jurors  whose  concurrence  was 
essential  to  the  verdict,  and  also  to  its  action  in  receiving  and  enter- 
ing of  record  such  verdict. 

The  territorial  statute  was  relied  upon  as  authority  for  this 
action.  Its  validity,  therefore,  must  be  determined.  Whether 
the  Seventh  Amendment  to  the  Constitution  of  the  United 
States,  which  provides  that  "  in  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved,"  operates  ex  proprio  vigore  to  invalidate 
this  statute,  may  be  a  matter  of  dispute.  In  Webster  v.  Reid,  11 
How.  437,  an  act  of  the  legislature  of  the  Territory  of  Iowa  dis- 
pensing with  a  jury  in  a  certain  class  of  common  law  actions  was 
held  void.  While  in  the  opinion,  on  page  460,  the  Seventh  Amend- 
ment was  quoted,  it  was  also  said:  "  The  organic  law  of  the  Terri- 
tory of  Iowa,  by  express  provision  and  by  reference,  extended  the 
laws  of  the  United  States,  including  the  ordinance  of  1787,  over  the 
Territory,  so  far  as  they  are  applicable  ";  and  the  ordinance  of 
1787,  article  2,  in  terms  provided  that  "  the  inhabitants  of  the  said 


AMERICAN    PUBLISHING    COMPANY   V.    FISHER  403 

Territory  shall  always  be  entitled  to  the  benefits  of  the  writ  of 
habeas  corpus,  antl  of  the  trial  by  jury."  So  the  invalidity  may 
have  been  adjudged  by  reason  of  the  conflict  with  Congressional 
legislation.  In  Reynolds  v.  United  States,  98  U.  S.  145,  154,  it 
was  said,  in  reference  to  a  criminal  case  commg  from  the  Territory 
of  Utah,  that  "  by  the  Constitution  of  the  United  States  (Amend- 
ment \T)  the  accused  was  entitled  to  a  trial  by  an  impartial  jury." 
Both  of  these  cases  were  quoted  in  Callan  v.  Wilson,  127  U.  S.  540, 
as  authorities  to  sustain  the  ruling  that  the  provisions  in  the 
Constitution  of  the  United  States  relating  to  trial  by  jury  are  in 
force  in  the  District  of  Columbia.  On  the  other  hand,  m  Mormon 
Church  V.  United  States,  136  U.  S.  1,  44,  it  was  said  by  Mr.  Justice 
Bradley,  speakmg  for  the  court:  "  Doubtless,  Congress  in  legislat- 
ing for  the  Territories  would  be  subject  to  those  fundamental 
limitations  in  favor  of  personal  rights  which  are  formulated  in  the 
Constitution  and  its  amendments;  but  these  limitations  would 
exist  rather  by  mference  and  the  general  spirit  of  the  Constitution 
from  which  Congress  derives  all  its  powers,  than  by  any  express 
and  direct  application  of  its  provisions."  And  in  McAllister  v. 
United  States,  141  U.  S.  174,  it  was  held  that  the  constitutional 
provision  m  respect  to  the  tenure  of  judicial  offices  did  not  apply  to 
territorial  judges. 

But  if  the  Seventh  Amendment  does  not  operate  in  and  of  itself 
to  invafidate  this  territorial  statute,  then  Congress  has  full  control 
over  the  Territories  irrespective  of  any  express  constitutional 
limitations,  and  it  has  legislated  m  respect  to  this  matter.  In  the 
first  place,  in  the  act  to  establish  a  territorial  government  for  Utah, 
act  of  September  9,  1850,  c.  51,  §  17,  9  Stat.  453,  458,  it  enacted 
"  that  the  Constitution  and  laws  of  the  United  States  are  hereby 
extended  over  and  declared  to  be  in  force  in  said  Territory  of  Utah, 
so  far  as  the  same,  or  any  provision  thereof,  may  be  applicable." 
A  subsequent  statute  has  more  specific  reference  to  jury  trials. 
Act  of  April  7,  1874,  c.  80,  18  Stat.  27.  The  first  section  of  this 
act,  after  confirming  the  statutes  of  the  various  Territories  so  far 
as  they  authorize  a  uniform  course  of  proceedmg  in  all  cases 
whether  legal  or  equitable,  closes  with  this  proviso:  "  Provided, 
that  no  party  has  been  or  shall  be  deprived  of  the  right  of  trial  by 
jury  in  cases  cognizable  at  common  law." 

This,  of  course,  implies  not  merely  that  the  form  of  a  jury  trial 
be  preserved,  but  also  all  its  substantial  elements.  Walker  v. 
Southern  Pacific  Railroad,  165  U.  S.  593. 


404  TRIAL 

Therefore,  either  the  Seventh  Amendment  to  the  Constitution, 
or  these  acts  of  Congress,  or  all  together,  secured  to  every  litigant 
in  a  common  law  action  in  the  courts  of  the  Territory  of  Utah  the 
right  to  a  trial  by  jury,  and  nullified  any  act  of  its  legislature  which 
attempted  to  take  from  him  anything  which  is  of  the  substance  of 
that  right.  Now  unanimity  was  one  of  the  peculiar  and  essential 
features  of  trial  by  jury  at  the  common  law.  No  authorities  are 
needed  to  sustain  this  proposition.  Whatever  may  be  true  as  to 
legislation  which  changes  any  mere  details  of  a  jury  trial,  it  is  clear 
that  a  statute  which  destroys  this  substantial  and  essential  feature 
thereof  is  one  abridging  the  right.  It  follows,  therefore,  that  the 
court  erred  in  receiving  a  verdict  returned  by  only  nine  jurors,  the 
others  not  concurring. 

In  order  to  guard  against  any  misapprehension  it  may  be  proper 
to  say  that  the  power  of  a  State  to  change  the  rule  in  respect  to 
unanimity  of  juries  is  not  before  us  for  consideration.  Walker  v. 
Sauvinet,  92  U.  S.  90;   Hurtado  v.  California,  110  U.  S.  516. 

The  judgment  will  be 

Reversed,  and  as  the  questions  involved  in  the  case  are  not  of  a 
Federal  nature,  and  diverse  citizenship  is  not  alleged,  the  case 
must  be  remanded  to  the  Supreme  Court  of  the  State  for  further 
proceedings.^ 


WEEKS   V.   HART. 

Supreme  Court  of  New  York,  General  Term.     1881. 

[Reported  24  H%m,  181.] 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  verdict  of  a  jury,  and  from  an  order  denying  a  motion  for  a  new 
trial  made  upon  the  mmutes  of  the  justice  before  whom  the  action 
was  tried. 

Gilbert,  J.  When  the  jurors  were  polled  one  of  them  responded 
that  he  was  not  satisfied  with  the  verdict.  The  court  asked  the 
juror  if  he  had  not  agreed  to  the  verdict,  and  the  juror  responded 
that  he  had.  The  defendant's  counsel  objected  to  the  entry  of 
the  verdict,  the  court  overruled  the  objection  and  the  defendant's 
counsel  excepted.     Whereupon  the  court  directed  the  verdict  to  be 

1  See  also  Rassmussen  v.  United  States,  197  U.  S.  516,  49  L.  ed.  862,  25  S. 
Ct.  514.  And  see  an  article  on  "  Modifications  of  the  Jury  System  "  by 
Professor  John  Burton  PhiUips,  in  16  Green  Bag,  514.  —  Ed. 


FOX    V.    SMITH  405 

entered.  That  direction  was  clearly  erroneous.  The  jury  should 
have  been  sent  back  for  further  deliberation.  The  right  of  a  juror 
to  dissent  from  a  verdict  to  which  he  liad  before  agreed,  is  not  lost 
until  the  verdict  has  been  recorded.  Any  expression  of  dissent 
before  that  has  been  done,  destroys  the  unanimity  which  is  essen- 
tial to  make  a  verdict  valid.  Labar  v.  Koplin,  4  Corns.  550,  and 
cases  there  cited;  3  Waite's  Pr.  192. 

This  error  being  decisive  it  is  unnecessary  to  consider  the  other 
questions  presented. 

The  judgment  and  order  must  be  reversed  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

Barnard,  P.  J.,  concurred;  Dykman,  J.,  not  sitting. 

Judgment  and  order  denying  new  trial  reversed  and  new  trial 
granted,  costs  to  abide  event."^ 


FOX  V.   SMITH. 

Supreme  Court  of  New  York.     1824. 

[Reported  3  Cowen,  23.] 

E.  Griffin,  for  the  defendant,  moved  to  set  aside  the  verdict  in 
this  cause,  which  was  rendered  for  the  plaintiff  at  the  last  Jefferson 
Circuit,  under  the  following  circumstances:  The  trial  not  being 
closed  till  evening,  it  was  agreed  by  the  counsel  for  the  parties, 
that  the  jury  might  bring  in  their  verdict  sealed  the  next  morning, 
which  was  accordingly  done.  On  the  jury  coming  into  the  box  the 
next  morning,  and  presenting  their  verdict  sealed,  the  defendant's 
counsel  requested  of  the  Judge  to  have  the  jury  polled,  which  he 
denied,  and  the  verdict  was  recorded. 

WooDWORTH,  J.  Conceding  that  the  Judge  may  order  the  jury 
polled,  seems  to  give  the  party  a  right  to  insist  on  it.  I  think  this 
cannot  be  a  matter  of  mere  discretion.  It  has  been  the  uniform 
practice  at  the  Circuit,  as  far  as  I  have  been  acquainted  with  it, 
to  allow  the  jury  to  be  polled,  whether  the  verdict  be  sealed,  as  here, 
by  consent,  or  delivered  ore  tenus  by  the  foreman. 

1  Owens  v.^Southern  Ry.  Co.,  123  N.  C.  183,  31  S.  E.  383;  Frick  v.  Rey- 
nolds, 6  Okl.  638,  52  Pac.  391;  Scott  v.  Scott,  110  Pa.  387,  2  Atl.  531,  accord. 

Compare  Hill  t-.  State,  64  Ga.  453;  McCoy  v.  Jordan,  184  Mass.  575  69 
N.  E.  358;  Lowe  v.  Dorsett,  125  N.  C.  301,  34  S.  E.  442. 

A  juror  may  dissent  from  the  verdict  although  the  jury  is  not  polled. 
Lawrence  v.  Stearns,  11  Pick.  (Mass.),  501.  —  Ed. 


406  TRIAL 

Curia.  We  think  the  jury  may  be  polled,  at  the  instance  of 
either  party,  at  any  time  before  the  verdict  is  recorded,  whether  it 
be  sealed,  by  consent,  or  is  oral.  Motion  granted.^ 


BISHOP   V.   MUGLER. 
Supreme  Court  of  Kansas.     1885. 

[Reported  33  Kansas,  145.] 

Johnston,  J.  The  district  court  of  Saline  county  granted  a 
peremptory  writ  of  mandamus  against  the  plaintiff  in  error,  who 
is  a  justice  of  the  peace  of  said  county,  commanding  him  to  receive 
and  file  a  verdict  alleged  to  have  been  agreed  upon  by  a  jury  in  a 
certain  cause  tried  before  him  as  a  justice  of  the  peace,  where  the 
defendant  in  error  was  plaintiff  and  one  William  Huebner  was 
defendant.  From  the  pleadings  and  the  evidence  in  the  record,  it 
fairly  appears  that  the  cause  was  submitted  to  the  jury  late  in  the 
evening,  and  the  justice  of  the  peace,  with  the  consent  of  the  coun- 
sel, instructed  the  jurors  that  if  they  agreed  upon  a  verdict  during 
the  night,  they  might  seal  the  same  and  separate,  returning  the 
verdict  into  court  on  the  next  morning  at  nine  o'clock,  to  which 
time  the  court  adjourned.  The  jury  reached  an  agreement  during 
the  night,  when  the  verdict  was  signed  and  given  to  the  bailiff,  and 
the  jurors  dispersed.  The  bailiff  carried  the  verdict  in  his  pocket 
for  a  short  time,  and  then  returned  and  deposited  it  upon  a  desk  in 
the  office  of  the  justice  of  the  peace.  The  attention  of  the  justice 
of  the  peace  was  called  to  it  in  the  morning,  and  he  was  informed 
that  it  was  the  verdict  agreed  upon  the  previous  night.  Upon  the 
convening  of  the  court,  on  the  next  morning,  the  jury  failed  to 
appear,  and  the  justice  directed  the  bailiff  to  bring  the  jury  into 
court.  After  some  effort  to  find  the  jurors,  the  bailiff  returned  and 
reported  that  only  four  of  the  jurors  could  be  found.  It  was  then 
suggested  that  the  verdict  which  had  been  returned  by  the  bailiff 
to  the  justice  be  received  and  filed,  but  the  counsel  for  defendant 
objected  to  its  reception,  because  it  had  been  out  of  the  hands  of 
the  jury,  and  insisted  that  it  could  not  be  received  unless  presented 
by  the  jury,  with  all  of  the  jurors  present.  The  court  was  then 
adjourned  until  three  o'clock  of  the  afternoon  of  the  same  day,  and 

1  Smith  V.  Paul,  133  N.  C.  66,  45  S.  E.  348,  accord.  Ropps  v.  Barker,  4  Pick. 
(Mass.),  239,  contra. 

As  to  the  time  when  the  motion  must  be  made  see  Zimmerman  v.  Detroit, 
etc.,  Co.,  113  Mich.  1,  71  N.  W.  321;  Rottmund  v.  Pa.  R.  R.  Co.,  225  Pa.  410, 
74  Atl.  341;  22  Encyc.  of  PI.  &  Pr.  935.  —  Ed. 


BISHOP   V.    MUGLER  407 

the  bailiff  was  instructed,  in  the  meantime,  to  make  search  for  the 
absent  jurors  and  bring  them  into  court  at  that  time.  The  court 
reconvened  at  3  p.  m.,  when  five  of  the  jurors  appeared,  the  baihff 
reporting  that  he  was  unable  to  find  one  of  the  jurors,  or  learn 
anything  of  his  whereabouts.  The  justice  then  refused  to  receive 
the  verdict,  declared  a  mis-trial,  discharged  the  jurj^,  and  continued 
the  case  for  future  disposition.  Whereupon,  the  defendant  in 
error  instituted  this  proceeding  in  mandamus,  and  obtained  a 
peremptory  writ  as  above  stated.     The  plaintiff  alleges  error. 

The  question  presented  for  our  determination  is,  was  it  the  duty 
of  the  justice  of  the  peace  to  receive  and  file  the  verdict  brought 
into  court  in  the  manner  hereinbefore  stated,  and  can  its  reception 
and  filing  be  compelled  by  mandamus  ?  It  will  be  observed  that 
the  agreement  of  counsel  and  the  direction  of  the  court  did  not  go 
further  than  to  permit  the  jury,  when  they  had  agreed  upon  a  ver- 
dict, to  seal  it,  and  separate  for  the  night.  This  did  not  operate 
as  a  discharge  of  the  jury,  but  it  remained  in  existence  as  an  or- 
ganized body,  and  it  was  the  duty  of  the  jurors  to  have  appeared 
at  the  convening  of  the  court  the  following  morning,  and  there, 
through  their  foreman,  to  present  and  publicly  announce  the  ver- 
dict previously  agreed  upon.  The  permission  to  seal  the  verdict 
and  separate  for  the  night,  did  not  dispense  with  the  necessity  of 
their  attendance  upon  the  court  at  the  time  to  which  it  had  ad- 
journed. The  determination  of  a  jury,  although  formally  stated 
in  a  verdict,  and  signed  and  sealed,  is  not  final  ^\^th  them,  but  it 
remains  within  their  control  and  subject  to  an}^  alteration  or 
amendment  they  desire  to  make,  until  it  is  actually  rendered  in 
court  and  recorded.  It  is  well  settled  that  any  member  of  the  jury 
is  at  liberty  to  withdraw  his  consent  from  a  verdict  already  agreed 
upon,  at  any  time  before  it  is  received  and  recorded  (Root  v. 
Sherwood,  6  Johns.  68;  Proffatt  on  Trial  by  Jury,  §  449),  and  until 
a  sealed  verdict  is  properly  received  and  recorded  in  court,  it  is 
without  force  or  validity.  Proffatt  on  Trial  by  Jury,  §  460. 
Except  by  consent,  the  verdict  can  only  be  rendered  by  a  full  jury. 
Every  member  should  be  present  when  it  is  received,  so  that  the 
parties  may  avail  themselves  of  the  right  to  examine  each  juror, 
and  learn  if  he  concurs  in  the  verdict  announced.  The  main  pur- 
pose in  requiring  tlie  jury  to  bring  in  their  verdict,  and  personally 
present  it  in  open  court,  is  that  the  parties  may  have  an  opportu- 
nity to  poll  them,  or  to  correct  any  informality  found  in  the  verdict 
presented.  The  polling  of  the  jury  is  not  a  mere  mattter  of  dis- 
cretion with  the  court,  but  is  an  absolute  right  of  the  parties  to  the 


408  TRIAL 

suit.  It  was  said  in  Madirska  v.  Thomas,  6,  Kas.  159,  "  that  in  all 
cases  a  party  has  a  right  to  know  whether  a  supposed  verdict  is  the 
verdict  of  each  juror,  or  of  only  one  or  more  of  the  jury;  and  if 
§§  283  and  284  of  the  civil  code  do  not  apply  where  the  jury  decide 
without  retiring  from  the  jury-box,  still  the  common  law  would 
give  each  party  a  right  to  know  the  verdict  of  each  juror."  See 
also  Thornburgh  v.  Cole,  27  Kas.  490.  Of  course  some  of  these 
requirements  and  rights  might  have  been  waived  and  dispensed 
with  by  the  agreement  or  conduct  of  the  parties.  Here  there  was 
no  such  agreement  or  waiver.  The  defendant  in  the  action  stood 
upon  his  rights,  and  strenuously  objected  to  the  reception  of  a 
verdict  unless  it  was  regularly  presented  by  the  jury  as  an  organized 
body,  with  every  member  present.  With  the  aid  of  the  bailiff  five 
of  the  jurors  were  found  and  brought  into  court,  but  the  sixth 
could  not  be  found.  The  determination  of  the  five  jurors  was  not 
a  valid  verdict,  and  the  court  could  not  receive  it  as  such.  Mad- 
uska  V.  Thomas,  supra. 

There  has  been  no  brief  filed  or  argument  made  in  this  court  in 
behalf  of  the  defendant  in  error;  but  it  is  stated  that  to  support 
his  application  for  the  \^Tit,  he  relied  upon  the  case  of  Munkers  v. 
Watson,  9  Kas.  668.  It  is  not  authority  in  this  case.  There  the 
verdict  was  unanimously  agreed  upon  by  the  jury,  reduced  to 
writing  in  due  form,  returned  by  the  jurj^,  and  regularly  presented 
to  the  court,  but  for  insufficient  reasons  the  court  refused  to  re- 
ceive and  enter  the  same.  In  this  case,  contrary  to  the  injunction 
of  the  court,  the  jury  disbanded  before  the  rendition  of  a  verdict, 
and  as  they  did  not  assemble  again,  no  valid  verdict  could  be  ren- 
dered by  them.  That  which  was  returned  was  not  a  verdict,  and 
therefore  the  court  cannot  be  compelled  by  mandamus  to  receive 
and  file  it. 

Some  question  is  raised  as  to  whether  the  court  should  not  have 
compelled  a  more  extended  search,  and  a  greater  effort  to  secure 
the  attendance  of  the  absent  juror.  It  would  seem  that  a  rea- 
sonable effort  was  made  to  bring  the  jury  together,  but  that  ques- 
tion cannot  be  determined  in  this  proceeding,  which  is  brought 
for  the  purpose  of  compelling  the  reception  and  filing  of  an  alleged 
verdict,  and  not  to  compel  the  re-assembling  of  the  jury. 

The  judgment  of  the  district  court  will  be  reversed.^ 

All  the  Justices  concurring. 

1  Compare  Humphries  v.  District  of  Columljia,  174  U.  S.  190,  43  L.  ed.  944, 
14  S.  Ct.  637. 

As  to  whether  the  consent  of  the  parties  to  a  sealed  verdict  is  necessary,  see 


KJEIAMER   V.    KISTER  409 

KRAMER   V.   KISTER. 

Supreme  Court  of  Pennsylvania.     1898. 

[Reported  187  Pennsylvania,  227.] 

Mitchell,  J.^  .  .  .  The  jury  having  agreed  to  a  sealed  verdict 
separated,  and  the  next  morning  the  verdict  was  handed  up, 
opened  and  announced,  but  on  the  jury  being  polled  one  juror 
dissented,  whereupon  the  judge  sent  them  out  again  with  some 
strong  remarks  on  keeping  them  until  they  had  agreed.  In  a  short 
time  they  returned  with  the  same  verdict  as  the  one  sealed,  and  it 
was  received  and  recorded  against  the  defendant's  objection. 

The  practice  of  allowing  the  jury  to  seal  a  verdict  and  then 
separate  is  very  general  throughout  the  United  States.  Seventy- 
five  years  ago  Chief  Justice  Gibson  spoke  of  it  as  in  common  use  in 
Pennsylvania,  having  grown  out  of  and  superseded  the  privy  ver- 
dict knoA\Ti  to  the  common  law,  which  was  delivered  to  the  judge 
out  of  court:  Dornick  v.  Reichenback,  10  S.  &  R.  84.  Both  forms 
were  alike  in  being  without  binding  force  as  verdicts  until  delivered 
by  the  jury  in  court.  All  the  authorities  agree  that  the  only  ver- 
dict is  that  which  the  jury  announce  orally  in  court,  and  which 
alone  is  received  and  recorded  as  the  jury's  finding:  Dornick  v. 
Reichenback,  supra;  Scott  v.  Scott,  110  Pa.  387;  Com.  v.  Breyessee, 
160  Pa.  451.  The  authorities  also  agree  that,  as  the  only  verdict  is 
that  announced  by  the  jury  in  court,  if  with  or  without  a  poll  any 
juror  disagree,  there  is  no  verdict:  Scott  v.  Scott,  supra.  But  the 
course  to  be  pursued  in  such  case  is  an  open  question  upon  which 
we  have  no  direct  authority  in  this  state.  A  verdict  which  is 
merely  defective  in  form,  Avhether  sealed  or  not,  and  whether  the 
jury  have  separated  or  not,  may  before  it  is  recorded  be  recom- 
mitted to  them  for  correction,  as  for  example  to  calculate  the 
interest  where  they  have  found  for  plaintiff  for  a  sum  certain  "  with 
interest  ":  Wolfran  v.  Eyster,  7  W.  38;  Reitenbaugh  v.  Ludwick, 
31  Pa.  131.  But  for  a  defect  in  substance  where  the  jury  has 
separated,  and  a  fortiori  for  a  defect  that  prevents  the  jury's 
delivery  from  being  a  verdict  at  all,  as  where  the  dissent  of  one 

Bunker  Hill,  etc.,  Co.  v.  Schmelling,  24  C.  C.  A.  564,  79  Fed.  263;  22  Encyc.  of 
PI.  &  Pr.  1006. 

In  Iowa  by  statute  if  the  parties  consent  to  a  sealed  verdict,  the  sealing  is 
equivalent  to  the  rendition  and  recording  in  open  court.  See  Dunbauld  « 
Thompson,  109  la.  199,  SO  N.  W.  324.  —  Eo. 

'  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 


410  TRIAL 

shows  that  it  is  not  unanimous,  whether  the  judge  should  treat  it 
as  a  mistrial  and  discharge  the  jury,  or  whether  he  may  send  them 
out  to  consider  a  verdict  anew,  is  undetermined.  A  few  collateral 
intimations  and  dicta  seem  to  point  to  the  former  as  the  proper 
course,  but  we  have  no  decision.  Thus  in  Wolfran  v.  Eyster,  7  W. 
38,  supra,  the  court  expressly  limited  the  decision  to  "  amending 
mere  defects  of  form,  not  substantially  changing  the  finding  of  the 
jury."  And  in  Scott  v.  Scott,  110  Pa.  387,  supra,  where  the  asso- 
ciate judges  entered  a  sealed  verdict  notwithstanding  the  dissent 
of  one  juror  on  a  poll,  this  Court  held  it  error,  saying,  "  Of  course 
had  the  learned  president  judge  been  present  the  verdict  of  eleven 
jurors  would  not  have  been  entered  on  the  record.  Unless  all  the 
jurors  were  agreed  he  would  have  discharged  them  because  of  their 
disagreement."  The  authorities  cited  by  appellee  from  our  criminal 
cases,  Alexander  v.  Com.,  105  Pa.  1,  Moss  v.  Com.,  107  Pa.  267, 
Hilands  v.  Com.,  Ill  Pa.  1,  and  Com.  v.  Eisenhower,  181  Pa.  470, 
refer  to  separation  of  the  jury  during  the  trial,  and  do  not  touch 
the  present  inquiry.  Nor  is  there  any  settled  rule  in  other  states 
to  which  we  may  conform.  In  New  York  the  imperfect  verdict  is 
treated  as  a  nullity  for  all  purposes,  and  the  jury  may  be  sent  out 
to  deliberate  again:  Douglass  v.  Tousey,  2  Wend.  352.  In  Ohio 
this  cannot  be  done :  Suthff  y.  Gilbert,  8  Ohio,  405.  It  would  seem 
to  be  a  question  of  practice  as  to  which  there  is  no  uniformity. 

We  are  thus  left  to  consider  the  subject  on  historical  and  general 
principles,  as  to  the  origin  and  proper  extent  of  the  practice.  At 
common  law  the  jury  were  kept  together  from  the  time  they  were 
sworn,  as  is  still  the  general  rule  in  criminal  cases  involving  life. 
After  they  had  retired  to  consider  their  verdict  they  were  kept 
without  food,  drink,  fire  or  light,  until  they  agreed,  and  Blackstone 
says,  "  It  has  been  held  that  if  the  jurors  do  not  agree  in  their 
verdict  before  the  judges  are  about  to  leave  the  town,  though  they 
are  not  to  be  threatened  or  imprisoned,  the  judges  are  not  bound  to 
wait  for  them,  but  may  carry  them  round  the  circuit  from  town  to 
town  in  a  cart  ":  3  Blacks.  Com.  376.  From  the  manner  of  this 
mention  it  is  to  be  inferred  that  this  latter  practice  was  at  least 
unusual  in  Blackstone's  day,  and  he  says  expressly  that  the  depri- 
vation of  food,  fire  and  light  was  subject  to  the  indulgence  of  the 
court.  In  relief  of  the  jury  the  privy  verdict  was  recognized, 
though  not  often  resorted  to.  "  A  privy  verdict  is  when  the  judge 
hath  left  or  adjourned  the  court,  and  the  jury,  being  agreed,  in 
order  to  be  delivered  from  their  confinement,  obtain  leave  to 
deliver  their  verdict  privily  to  the  judge  out  of  court;  which  privy 


KRAMER   V.    KISTER  411 

verdict  is  of  no  force  unless  affirmed  by  a  public  verdict  given 
openly  in  court;  wherein  the  jury  may  if  they  please  vary  from  the 
privy  verdict.  So  that  the  privy  verdict  is  indeed  a  mere  nullity; 
and  yet  it  is  dangerous  practice,  allowing  time  for  the  parties  to 
tamper  with  the  jury,  and  therefore  very  seldom  indulged":  3 
Blacks.  Com.  377.  With  the  prolongation  of  trials  in  the  more 
complicated  issues  of  modern  times,  and  especially  with  the 
amelioration  of  manners,  the  treatment  of  jurors  has  gradually 
become  less  harsh,  and  changes  of  practice  have  been  made  in  their 
relief.  It  is  no  longer  the  custom  to  keep  them  together  and  se- 
cluded during  the  whole  trial,  though  I  apprehend  that  the  judge 
may  do  so  in  any  case  where  public  excitement  or  other  excep- 
tional reason  may  make  it  advisable  in  the  interest  of  the  proper 
administration  of  justice  to  do  so,  and  it  is  firmly  established  that 
in  trials  involving  life  he  must  do  so,  unless  in  exceptional  and  very 
limited  cases  of  necessity.  After  the  retirement  of  the  jury  to 
consider  their  verdict  this  indulgence  terminates,  and  they  are 
kept  together  and  apart  from  others  until  verdict  rendered.  But 
if  the  adjournment  of  the  court  is  to  such  time  or  under  such  cir- 
cumstances as  seem  likely  to  lead  to  serious  inconvenience  to  the 
jurors,  the  practice  of  allowing  them  to  seal  a  verdict  grew  up,  as 
said  by  Gibson,  C.  J.,  in  Dornick  v.  Reichenback,  10  S.  &  R.  84, 
supra,  in  place  of  the  privy  verdict.  It  had  the  same  disadvantage 
of  not  being  binding,  and  was  therefore  subject  to  the  same  dangers. 
By  the  recognized  practice  however,  it  is  within  the  discretion  of 
the  judge,  which  does  not  require  any  agreement  of  parties  or 
counsel,  and  may  be  exercised  without  their  consent.  But  it  is 
part  of  the  growth  of  modern  practice  in  relief  of  the  hardships  and 
inconvenience  to  which  jurors  are  necessarily  subjected,  and  cannot 
be  carried  beyond  the  point  of  reasonable  safety  to  the  admin- 
istration of  justice.  No  jury  can  demand  it  as  a  right  in  any  case, 
and  in  certain  cases  no  judge  can  grant  it  as  a  matter  of  grace. 
The  necessity  that  the  verdict  shall  not  only  be  fair  aud  unbiased, 
but  beyond  reasonable  apprehension  of  danger  that  it  is  otherwise, 
must  be  the  controlling  element  in  determining  the  limits  of  the 
convenience  of  the  jurors  and  the  discretion  of  the  judge.  When  a 
juror  dissents  from  a  sealed  verdict  there  is  a  necessary  choice 
of  evils,  a  mistrial  or  a  verdict  finally  delivered  under  circum- 
stances that  justly  subject  it  to  suspicion  of  coercion  or  improper 
influences.  We  are  of  opinion  that  the  former  is  the  lesser  evil. 
If  one  juror  can  dissent,  so  may  all  change  their  view  and  render  a 
new  verdict  exactly  opposite  to  the  one  they  first  agreed  upon  and 


412  TRIAL 

sealed.  There  could  be  no  better  illustration  of  the  dangers  of 
such  a  privilege  than  the  present  case.  If  the  dissenting  juror  was 
honest  in  his  declaration  that  he  had  not  agreed  to  the  first  verdict 
except  because  he  thought  he  was  obliged  to,  then  his  agreement 
to  the  second  without  having  been  instructed  as  to  his  rights 
cannot  be  freed  from  a  well  founded  appearance  of  coercion.  If 
on  the  other  hand  the  second  verdict  had  been  for  the  defendant, 
contrary  to  the  first,  the  inference  could  hardly  have  been  escaped 
that  the  change  was  produced  by  new  evidence  or  information 
illegally  acquired  by  the  dissenting  juror  or  by  even  more  repre- 
hensible means.  The  only  safe  way  out  of  such  a  situation  is  to 
treat  it  as  a  mistrial  and  discharge  the  jury. 

Judgment  reversed  and  venire  de  novo  awarded. 


SPENCER   V.   WILLIAMS,  Administrator. 
Supreme  Judicial  Court  of  Massachusetts.     1893. 

[Reported  160  Massachusetts,  17.] 

Contract,  against  the  administrator  of  the  estate  of  Polly 
Crosby,  upon  a  promissory  note  for  $2,500,  payable  to  the  plaintiff, 
and  signed  "  P.  Crosby."  The  answer,  among  other  defences, 
denied  the  genuineness  of  the  signature  to  the  note.  Trial  in  the 
Superior  Court,  before  Hopkins,  J.,  who  allowed  a  bill  of  excep- 
tions, in  substance  as  follows. 

At  the  close  of  the  trial,  the  judge  of  his  own  motion  submitted 
to  the  jury  the  following  question:  "  Did  Polly  Crosby  sign  the 
note  set  out  in  the  plaintiff's  declaration  ?  " 

The  case  was  given  to  the  jury  in  the  afternoon,  and,  before  the 
jury  had  agreed  on  their  verdict,  the  court  was  adjourned  until 
the  following  morning,  the  judge  instructing  the  officer  in  charge 
that,  when  the  jury  agreed,  they  should  seal  their  verdict  and  then 
be  allowed  to  separate  and  render  their  verdict  at  the  opening  of 
the  court  on  the  following  day. 

The  jury  agreed  upon  a  verdict  for  the  defendant  soon  after  the 
adjournment,  and  sealed  up  their  verdict  signed  by  the  foreman. 

At  the  opening  of  the  court  on  the  following  morning,  the  jury, 
having  been  separated  over  night,  were  reassembled  and  presented 
the  sealed  package  to  the  court,  and  on  the  opening  of  the  same 
it  appeared  that  the  verdict  was  rendered  for  the  defendant,  but 
the  question  above  stated  had  not  been  answered. 


SPENCER   V.    WILLIAMS  413 

Before  the  verdict  was  declared,  the  judge  instructed  the  jury 
that  they  should  answer  the  cjuestion,  and  directed  them  to  retire 
and  make  such  answer.  The  jury  thereupon  retired,  and  after- 
wards returned  into  court  with  the  verdict  for  the  defendant  and 
an  answer  to  the  question  in  the  negative. 

The  plaintiff,  on  the  same  day,  moved  to  set  aside  the  answer 
to  the  question,  on  the  following  grounds: 

"1.  That,  before  said  question  had  been  answered  by  the  jury, 
the  jury  separated  and  remained  separate  over  night  at  their 
various  homes.  2.  That  before  the  foreman  of  the  jury  had 
signed  said  question  and  answer  in  the  negative,  the  jury  sepa- 
rated and  remained  separate  at  their  several  homes  over  night. 
3.  That  said  question  was  returned  into  court  unanswered,  and 
before  said  question  was  answered,  and  more  than  twelve  hours 
after  said  separation,  the  jury,  as  required  by  the  court,  reassem- 
bled in  their  room,  and  that  then  for  the  first  time  said  question 
was  answered  by  the  jury  and  signed  by  the  foreman." 

At  the  hearmg  on  the  motion,  the  plaintiff  asked  the  judge  to 
rule,  as  matter  of  law,  that  the  answer  to  the  question  could  not 
be  maintained,  and  to  grant  the  motion. 

The  judge  declined  so  to  rule,  and  overruled  the  motion;  and 
the  plaintiff  alleged  exceptions. 

Barker,  J.  The  plaintiff  contends  that  upon  a  jury  trial  the 
presiding  justice  has  no  power  to  receive  the  answer  of  the  jury 
to  a  question  which  he  has  required  them  to  answer  in  connection 
with  their  verdict,  if  the  jury  has  been  allowed  to  separate  without 
reducing  to  writing  their  answer  to  the  question.  One  of  the  most 
important  reasons  for  requiring  juries  to  remam  together  after  the 
cause  is  finally  committed  to  them  mitil  they  have  agreed  upon 
their  verdict  is,  that  they  may  reach  their  conclusions  only  upon 
the  law  and  the  evidence  given  them,  uninfluenced  by  other 
matters.  Distinct  questions  submitted  to  them  are  in  connection 
with  their  verdict,  and  of  such  a  nature  that  the  jury  cannot  prop- 
erly arrive  at  a  verdict  except  upon  consideration  and  determina- 
tion of  the  specific  questions.  When,  therefore,  as  in  the  case  at  bar, 
the  verdict  has  been  arrived  at,  and  reduced  to  writing  and  signed 
by  the  foreman,  before  the  separation  of  the  jury,  it  is  to  be  in- 
ferred that  they  have  before  their  separation  considered  the  specific 
questions  submitted,  ami  arrived  at  an  agreement  as  to  the  answer 
to  be  given.  If  by  mistake  or  inadvertence  the  answer  has  not 
been  reduced  to  writing  and  signed  before  the  separation,  we 
think  it  is  still  within  the  power  of  the  court  to  require  the  jury  to 


414  TRIAL 

answer  the  question,  and  to  receive  and  record  the  answer  in  con- 
nection with  the  verdict.  As  stated  in  Mason  v.  Massa.  122  Mass. 
477,  480.  "  It  is  a  well  settled  and  long  established  practice  that  a 
jury,  when  they  have  returned  a  finding  that  is  incomplete  and 
defective,  may  be  sent  out  again  m  order  to  correct  the  error,  even 
though  they  had  separated  after  their  first  finding  before  they 
came  into  court."  An  omission  to  assess  damages  was  thus 
properly  cured  in  the  case  cited,  and  also  m  Chapman  v.  Coffin, 
14  Gray,  454.  In  the  former  case  the  proper  assessment  of 
damages  required  only  the  arithmetical  computation  of  the  amount 
of  a  note  and  mterest,  but  in  the  latter  the  foreman  said  to  the 
court  that  before  they  first  separated  they  concluded  that  the 
damages  would  be  the  amount  of  the  plaintiff's  account  and 
interest,  which  was  the  correct  basis  for  the  assessment  of  damages. 
We  are  therefore  of  opinion  that  in  the  case  at  bar  there  were  good 
grounds  to  infer  that  the  answer  of  the  jury  to  the  specific  question 
had  been  determined  upon  by  the  jury  in  comiection  with  arriving 
at  their  verdict  and  before  their  separation,  and  that  under  the 
circumstances,  upon  the  motion  for  a  new  trial,  the  presiding 
justice  was  not  required  to  rule  as  requested  by  the  plaintiff. 

We  assume  that,  if  he  had  had  reason  to  suppose  that  the  jury 
had  not  considered  the  question  and  determined  how  to  answer 
it  before  their  separation,  the  presidmg  justice  would  not  have 
again  sent  them  out  with  instructions  to  make  their  answer. 

Exceptions  overruled} 


COGAN   V.   EBDEN  and  Another. 
King's  Bench.     1757. 

[Reported  1  Burrow,  383.] 

On  a  motion  (made  the  18th  instant),  to  set  aside  a  verdict  as 
being  given  in  by  the  foreman,  contrary  to  the  opinion  and  inten- 
tion of  eight  of  the  jury.  It  appeared  that  the  defendant  justified 
under  a  right  of  a  way,  over  the  plaintiff's  ground,  to  two  closes  of 
the  defendant,  viz.  Broadmoor,  and  Three  Acres:  upon  which  two 
different  issues  were  jomed;  viz.  one  upon  the  right  of  a  way  to 
Broadmoor;  the  other  upon  the  right  of  a  way  to  the  Three  Acres. 
And  the  foreman  gave  in  the  verdict,  as  a  general  verdict  for  the 

1  See  Clark  v.  Sidway,  142  U.  S.  682,  35  L.  ed.  1157,  12  S.  Ct.  327. 
See  also  38  Cyc.  1892;  22  Encyc.  of  PI.  &  Pr.  1011.  —  Ed. 


COGAN   V.    EBDEN  415 

defendant,  upon  both  issues.  But  eight  of  the  jury  made  affidavit, 
"  That  it  was  the  meaning  and  intention  of  the  whole  jury,  to  find 
the  former  issue  for  the  defendant;  and  the  latter  for  the  plaintiff: 
and  that  this  mistake  was  discovered  by  them  an  hour  afterwards ; 
but  not  till  the  judge  was  gone  to  his  lodgings."  And  upon  the 
judge's  report,  it  appeared  that  though  there  was  indeed  evidence 
on  both  sides,  yet  the  weight  of  the  evidence  was  (as  it  appeared  to 
him)  on  the  side  of  the  plaintiff,  as  to  this  latter  issue. 

N.B.  The  foreman  had  declined  making  any  affidavit ;  because, 
he  said,  he  should  make  himself  appear  a  fool  to  the  Court  of 
King's  Bench. 

This  matter  was  much  litigated  by  the  counsel  on  both  sides. 
And  the  counsel  for  the  plaintiff  mentioned  the  case  of  Baker  v. 
Miles,  in  C.  B.  in  M.  4  G.  2.  S.  P.  where  eleven  of  the  jurymen 
swore  "  that  the  foreman  had  mistaken  their  verdict  ";  and  it  was 
thereupon  set  aside. 

The  Court  were  all  clear  that  this  was  a  mistake,  arising  from 
the  jury's  being  unacquainted  with  business  of  this  nature;  and 
from  the  associate's  omission  in  not  asking  the  jury  particularly-, 
"  how  they  found  each  respective  issue,"  and  in  not  making  the 
jury  fully  understand  their  own  findmg;  and  that  it  was  agreeable 
to  right  and  justice  that  the  mistake  should  be  rectified.  And  they 
had  no  doubt  about  the  fact  of  this  mistake,  from  the  affidavit 
of  the  eight  jurymen,  confirmed  (as  they  held  it  in  effect  to  be)  by 
the  foreman's  declining  to  make  any  affidavit  at  all :  especially  as 
the  judge's  notes  shewed  the  weight  of  the  evidence  to  have  been 
for  the  plaintiff  as  to  this  latter  issue. 

And  Lord  Mansfield  and  Mr.  Just.  Denison  thought  that  as  it  was 
a  mere  slip,  there  might  be  some  method  of  rectifying  the  verdict 
according  to  the  truth  of  the  case;  from  the  judge's  notes,  if  they 
were  sufficiently  particular;  without  sending  the  issue  to  be  tried 
over  again  at  a  great  expence. 

And  the  case  of  Newcombe  v.  Green,  in  2  Strange  1197,  was 
mentioned,  where  the  -postea  was  amended  by  the  Judge's  notes. 
And  Lord  Mansfield  said  that,  at  least,  they  could  set  aside  the 
verdict  without  costs.  But  difficulties  occurring  how  the  costs 
would  be  in  such  case,  as  one  issue  was  still  found  for,  and  was  in 
truth  clearly  for  the  defendant;    therefore  Cur.  advis'. 

And  now  Lord  Mansfield  seeing  Mr.  Morton  in  court,  who  was 
concerned  for  the  plaintiff,  and  had  (on  his  behalf)  moved  to  set 
aside  the  verdict,  took  occasion  to  mention  this  case,  and  said 
they  had  thought  of  it;  and  he  had  talked  with  his  brother  Wilmot 


416'  TRIAL 

too  about  it:  but,  however,  he  was  not  now  going  to  give  any 
opinion ;  but  only  to  propose  what  seemed  to  him  the  most  proper 
method  of  coming  at  it. 

The  case  of  Newcombe  v.  Green  itself,  is  not  applicable  to  this 
case.  But  there  is  another  case  of  Mayo  v.  Archer,  in  1  Strange 
514,  515;  where  the  question  was,  "  Whether  a  farmer  who  bought 
and  sold  potatoes  could  be  a  bankrupt  ":  and  the  special  verdict 
did  not  set  forth  the  quantities  he  had  bought  and  sold;  though 
they  were  proved  at  the  trial.  The  court  did  not  there  award  a 
venire  facias  de  novo;  but  amended  the  special  verdict  in  that 
respect;  which  case  is  more  applicable  to  the  present  case  than 
that  which  was  cited :  For  here  they  ordered  the  special  verdict  to 
be  amended;  though  the  plaintiff's  motion  was  only  "  that  a 
venire  facias  de  novo  might  be  awarded." 

But  another  case  has  been  mentioned  to  me,  which  is  applicable 
to  the  principle  of  this  case;  though  not  hke  the  particular  fact. 
It  is  that  of  Dayrell  v.  Bridge,  Tr.  22  G.  2.  B.  R.  trespass  for  cutting 
down  an  oak-tree.  The  defendant  pleaded  several  pleas;  one  of 
which  was,  "  Not  Guilty."  At  the  trial,  a  general  verdict  was 
taken  down,  and  so  entered.  And  the  court  rectified  the  verdict, 
by  expunging  the  finding  on  all  but  the  "  Not  Guilty  ";  it  appear- 
ing that  nothing  was  in  question  (at  the  trial)  but  "  whether  the 
place  where  the  tree  stood  was  parcel  of  the  manor  or  not."  In 
the  case  of  Newcombe  v.  Green,  several  cases  were  cited  on  the 
same  subject:  though  the  case  itself  is  not  the  present  case. 

If  the  court  sets  the  matter  right,  they  should  proceed  accord- 
ing to  the  whole  truth  of  the  case.  The  judge  who  tried  the  cause 
agrees  to  the  fact  disclosed  in  the  affidavit  of  the  eight  jurymen: 
whereas  your  first  affidavit  on  which  the  rule  was  made,  was  an 
affidavit  of  only  four  of  them. 

Therefore  what  I  would  propose  is,  that  you  should  make  your 
motion,  and  have  a  rule  to  shew  cause,  why,  upon  reading  the 
affidavits  of  these  eight  jurymen,  the  verdict  should  not  be  amended 
and  set  right  according  to  the  truth  of  the  finding. 

Note  —  Such  a  motion  was  afterwards  made;  and  a  rule  to 
"shew  cause  "  granted;  but  it  never  came  before  the  court 
any  more:  it  plainly  appearing  that  the  court,  upon  delibera- 
tion among  themselves,  had  come  to  an  opinion,  "  that  in  this 
shape  the  verdict  might  be  set  right." 


DALRYMPLE   V.    WILLIAMS  417 

DALRYMPLE  v.   WILLIAMS  ef  aZ. 
Court  of  Appeals  of  New  York.     1875. 

[Reported  63  New  York,  361.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  fourth  judicial  department,  reversing  an  order  of  Special  Term 
correcting  the  verdict  as  entered. 

This  action  was  for  fraud.  The  foreman  of  the  jury  announced 
as  their  verdict  a  general  verdict  in  favor  of  plaintiff  against  both 
defendants,  and  it  was  so  entered.  Upon  application,  made  upon 
the  same  day  to  the  judge  holding  the  Circuit,  on  behalf  of  defend- 
ant Williams,  an  order  to  show  cause  at  a  day  specified,  during  the 
same  Circuit,  why  the  verdict  should  not  be  corrected  was  granted. 
The  application  was  based  upon  the  affidavits  of  all  the  jurors 
stating,  in  substance,  that  the  verdict  as  agreed  upon  by  them  was 
in  favor  of  defendant  Williams  and  against  the  other  defendant, 
for  the  amount  named  in  the  verdict  entered,  and  that  the  an- 
nouncement of  the  foreman  was  made  through  mistake  and 
inadvertence.  The  court,  upon  hearing  under  the  order  to  show 
cause,  directed  the  verdict  to  be  amended  so  as  to  conform  to  the 
actual  finding. 

Allen,  J.  If  the  fact  alleged  is  properly  before  us,  there  should 
be  no  doubt  either  as  to  the  right  of  the  plaintiff  to  have  or  the 
power  of  the  court  to  grant  the  relief  demanded.  It  would  be  a 
reproach  upon  the  administration  of  justice  if  a  party  could  lose 
the  benefit  of  a  trial  and  a  verdict  in  his  favor  by  the  mere  mistake 
of  the  foreman  of  the  jury  in  reporting  to  the  court  the  result  of  the 
deliberations  of  himself  and  his  fellows.  The  power  of  a  court  of 
record  over  its  records,  and  to  make  them  truthful,  is  undoubted, 
and  has  been  exercised  without  question.  See  cases  cited  by 
Judge  Harris,  in  Burhans  v.  Tibbits,  7  How.  Pr.  Rep.,  21.  The 
question  whenever  the  court  is  asked  to  reform  its  records  so  as  to 
conform  to  the  truth,  is  not  as  to  the  power,  but  whether  a  case  is 
made  calling  for  its  exercise. 

The  material  question  here  is,  whether  the  affidavits  of  the  jurors 
can  be  received  to  show  the  mistake.  If  they  were  properly  before 
the  court  the  fact  alleged  was  clearly  established  and  is  uncon- 
tradicted, and  in  addition  we  have  the  fact  that  the  judge  at  the 
Circuit  was  satisfied  of  the  mistake,  and  that  the  defendant  was 
entitled  to  the  correction  asked,  else  he  would  have  denied  the 
motion  altogether  or  modified  the  relief  demanded,  by  merely 
granting  a  new  trial.     It  was  competent  to  give  relief  in  either  form, 


418  TRIAL 

and  had  the  judge  doubted  as  to  the  right  or  the  equities  of  the 
case  he  would  have  only  set  the  verdict  aside  and  put  the  parties 
to  a  new  trial. 

There  are  reasons  of  public  policy,  why  jurors  should  not  be 
heard  to  impeach  their  verdicts,  whether  by  showing  their  mis- 
takes or  their  misconduct.      Neither  can  they  properly  be  per- 
mitted to  declare,  with  a  view  to  affect  their  verdict,  an  intent 
different  from  that  actually  expressed  by  the  verdict  as  rendered  in 
open  court.      In  early  times  the  pains  and  penalties  visited  upon 
jurors  for  false  verdicts  furnished  an  additional  reason  why  they 
should  not  be  allowed  to  impeach  them.      Watts  v.  Brains,  Cro. 
Eliz.,  778.     But  the  rule  is  well  established,  and  at  this  day  rests 
upon  well  understood  reasons  of  public  policy  as  connected  with 
the  administration  of  justice,  that  the  court  will  not  receive  the 
affidavits  of  jurymen  to  prove  misconduct  on  their  part,  or  any  act 
done  by  them  which  could  tend  to  impeach  or  overthrow  their 
verdict.      This  rule  excludes  affidavits  to  show  mistake  or  error  of 
the  jurors  in  respect  to  the  merits,  or  irregularity  or  misconduct, 
or  that  they  mistook  the  effect  of  their  verdict  and  intended  some- 
thing different.     Clum  v.  Smith,  5  Hill,  560;  Ex  parte  Caykendoll, 
6  Cow.,  53;  The  People  v.  Columbia  Common  Pleas,  1  Wend.,  297; 
Jackson  v.  WiUiamson,  2  T.  R.,  281;   Davis  v.  Taylor,  2  Chitty, 
268;  Vaise  v.  Delaval,  1  T.  R.,  11.     None  of  these  decisions  or  the 
principles  upon  which  they  rest  are  decisive  of  the  precise  question 
now  presented.      They  only  decide  that  the  verdict  to  which  the 
jurors  have  once  assented,  and  which  they  have  reported  to  the 
court,  cannot  be  impeached  or  set  aside  upon  their  declaration  or 
affidavit.     But  the  question  is  quite  different  when  the  allegation 
is  that  they  have  been  misunderstood  by  the  court,  or  erroneously 
reported  to  it,  and  that  the  entry  made  is  not  and  was  not  their 
verdict.      It  is  not  an  attempt  to  reverse  their  action  in  the  jury 
room  but  to  establish  it.     It  is  in  the  nature  of  an  attempt  to  cor- 
rect a  clerical  mistake.    Had  the  jury  rendered  a  sealed  verdict,  and 
their  clerk  or  scrivener  made  a  mistake  in  reducing  it  to  writing,  a 
correction  of  the  writing  after  it  had  reached  the  court  and  been 
entered  upon  the  minutes  would  be  no  impeachment  of  the  verdict 
or  of  the  integrity,  intelligence  or  action  of  the  jury.     The  jury  in 
furnishing  proof  of  the  clerical  mistake  would  stand  by  their  agree- 
ment and  aid  in  giving  effect  to  their  deliberations  and  deter- 
minations.    In  the  case  now  before  us  it  is  merely  sought  to  prove 
by  the  affidavits  of  the  jurors  that  by  an  accident,  without  inten- 
tional fault,  the  verdict  of  the  jury  was  erroneously  delivered  to 


DALRYMPLE    V.    WILLIAMS  419 

and  received  by  the  clerk.  I  am  unable  to  see  in  this  an  infringe- 
ment of  the  rule  forbidding  jurors  to  impeach  their  verdicts; 
neither  can  I  perceive  serious  danger  in  any  practice  that  may 
grow  up  under  such  an  exception  to  the  general  rule.  Applications 
of  this  character  will  be  rare,  will  be  made  before  the  judge  presid- 
ing at  the  trial  and  while  the  whole  subject  is  fresh  in  the  minds  of 
all,  and  never  will  be  granted  except  in  cases  free  from  reasonable 
doubt.  Something  must  always  be  trusted  to  the  discretion  of  the 
judge.  Discretion  cannot  be  withheld  in  all  cases  because  it  may 
sometimes  be  abused.  We  are  not  without  precedent  to  justify 
the  reception  of  and  acting  upon  the  affidavits  of  the  jurors  in  this 
case.  In  Cogan  v.  Ebden  (1  Burr.,  383),  a  verdict  wrongly 
delivered  by  the  foreman  was  set  right  upon  the  affidavit  of  eight 

of  the  jury.     Sargent  v. (5  Cow.,  106),  went  farther  than  the 

court  was  asked  to  go  here.  Affidavits  of  the  jury  were  received 
to  show  that  they  were  misled  and  adopted  a  principle  in  estimat- 
ing damages  not  allowed  by  law.  This  was  defended  and  approved 
in  Ex  parte  Caykendoll  (supra). 

In  Jackson  v.  Dickenson  (15  J.  R.,  309),  affidavits  of  jurors  were 
held  admissible  to  show  that  a  mistake  had  been  made  in  taking 
their  verdict,  and  that  it  was  entered  different  from  what  was 
intended.  The  court  draw  a  distinction  between  what  transpires 
while  the  jury  are  deliberating  on  their  verdict  and  what  takes 
place  in  open  court  in  returning  their  verdict,  holding  the  state- 
ments of  jurors  admissible  as  to  the  latter  but  not  as  to  the  former. 
Roberts  v.  Hughes  (7  M.  &  W.,  399),  is  hke  the  last  case  quoted, 
and  affidavits  of  the  jurors  were  received  as  to  what  took  place  in 
open  court  on  the  delivery  of  the  verdict,  to  correct  it.  See,  also, 
Prussel  V.  Knowles,  4  How.  [Miss.],  90. 

The  affidavits  were  admissible,  and  they  made  a  clear  case  for 
correcting  the  entry.  It  would  have  been  unjust  to  send  the  parties 
down  to  another  trial,  and  as  the  defendant  was  not  in  fault  there 
was  no  reason  for  charging  him  with  the  costs  either  of  the  motion 
or  of  the  trial. 

The  order  of  the  General  Term  must  be  reversed  and  that  of  the 
Special  Term  affirmed,  with  costs  of  this  appeal. 

All  concur;  except  Folger,  J.,  dissenting. 

Ordered  accordingly.^ 

1  See  Peters  v.  Fogarty,  55  N.  J.  L.  .386,  26  Atl.  855;  Wolf  gram  v.  Schoepke, 
123  Wis.  19,  100  N.  W.  1054,  3  Ann.  Cas.  398.  Compare  Randall  v.  Peerless, 
etc.,  Co.,  212  Mass.  352,  99  N.  E.  221.  But  see  Chevallier  v.  Dyas,  28  La. 
Ann.  359.  —  Ed. 


420  TRIAL 

MURDOCK   V.   SUMNER. 

Supreme  Judicial  Court  of  Massachusetts.    1839. 

[Reported  22  Pickering,  156.] 

Trover  for  divers  goods  attached  by  the  defendant  as  sheriff  of 
Suffolk.  A  verdict  had  been  found  for  the  plaintiff,  which  the 
defendant  now  moved  to  set  aside,  upon  the  affidavits  of  the  jurors, 
that  in  assessing  the  damages  they  proceeded  under  a  mistake. 

Shaw,  C.  J.  This  is  an  application  by  the  defendant,  to  set 
aside  the  verdict  and  grant  a  new  trial,  on  the  affidavit  of  the 
jurors,  that  in  the  assessment  of  damages  they  made  a  mistake. 
The  mistake  alleged  was  this,  that  in  estimating  the  value  of  the 
goods  which  were  the  subject  of  controversy,  one  witness  only 
was  examined,  who  testified  as  to  the  quality,  condition  and  cost 
of  the  goods,  and  to  his  opinion  that  they  were  worth  the  cost ;  that 
the  jury  believed  that  they  were  bound  by  this  opinion,  whereas 
if  they  had  felt  at  liberty  to  exercise  their  own  judgment,  they 
would  have  estimated  them  at  a  lower  rate. 

Affidavits  of  jurors  are  to  be  received  with  great  caution.  The 
rule  is  inflexible,  that  they  will  not  be  received  to  show  misconduct 
or  irregularity  on  the  part  of  the  jury  or  any  of  them.  And  the 
general  rule  is,  that  affidavits  of  jurors  will  not  be  received  to 
prove  any  mistake  of  the  evidence  or  misapprehension  of  the  law, 
on  the  part  of  the  jury.  Different  jurors,  according  to  their  diff- 
erent degrees  of  intelligence,  of  attention  and  habits  of  thought, 
may  entertain  different  views  of  the  evidence,  and  of  the  instruc- 
tions of  the  court  in  point  of  law.  But  the  verdict,  in  which  they 
all  concur,  must  be  the  best  evidence  of  their  behef ,  both  as  to  the 
fact  and  the  law,  and  therefore  must  be  taken  to  be  conclusive. 
Jackson  v.  Williamson,  2  T.  R.  281;  Owen  v.  Warburton,  4  Bos.  & 
Pul.  326;  Ex  parte  Caykendoll,  6  Cowen,  53;  Napier  v.  Daniel,  3 
Bingh.  New  Cases,  77.  The  rule  is  founded  upon  a  consideration 
of  the  great  danger,  practically,  of  listening  to  suggestions  of  mis- 
apprehension and  mistake  in  the  juries. 

The  Court  are  not  prepared  to  say  that  this  is  a  rule  without 
exception;  there  maj''  be  cases  of  manifest  mistake  in  computation, 
or  other  obvious  error,  where  there  are  full  means  of  detecting  and 
correcting  it,  where  it  would  be  proper  to  interfere. 

But  in  the  present  case,  the  evidence  having  been  heard  de  bene 
esse,  the  Court  are  of  opinion,  that  the  verdict  ought  not  to  be  set 


MURDOCK   V.    SUMNER  421 

aside.  It  was  an  estimate  of  the  value  of  goods.  The  facts  were 
stated  by  the  witness,  and  also  his  opinion.  But  the  jurors  had 
full  opportunity  to  exercise  their  own  judgment  on  the  facts,  and 
form  their  own  opinion  of  the  value.  If  indeed  any  juror  knew 
any  fact  bearing  upon  the  subject,  such  as  the  state  and  condition 
of  the  particular  parcel  of  goods,  especially  if  it  differed  from  the 
facts  testified,  he  should  have  stated  it  and  testified  to  it  in  open 
court,  that  the  court  might  judge  of  the  competency  of  the  evi- 
dence, that  the  parties  might  fully  examine  the  witness,  and  that 
the  counsel  and  court  might  have  under  their  consideration  the 
whole  of  the  evidence  upon  which  the  verdict  is  formed.  It  is  not 
suggested  that  the  jury  acted  upon  such  facts.  But  the  jury  may 
properly  exercise  their  own  judgment  and  apply  their  own  knowl- 
edge and  experience  in  regard  to  the  general  subject  of  inquiry. 
In  the  present  case,  the  jury  were  not  bound  by  the  opinion  of  the 
witness;  they  might  have  taken  the  facts  testified  by  him,  as  to 
the  cost,  quality  and  condition  of  the  goods,  and  come  to  a  dif- 
ferent opinion  as  to  their  value. 

It  is  said  that  the  jury  understood  the  court  to  instruct  them, 
that  they  must  go  by  the  testimony.  This,  as  a  general  proposi- 
tion, was  true  and  correct.  If  there  was  any  danger  that  the  jury 
would  be  misled  by  the  generality  of  this  direction,  the  counsel 
should  have  requested  the  judge  to  modify  it  and  make  it  more 
precise,  as  applicable  to  the  evidence  in  the  particular  case,  by 
informing  the  jury  that  they  were  not  bound  by  the  opinions  of 
the  witness,  but  only  by  such  facts  as  upon  the  testimony  they 
considered  proved,  the  jury  exercising  their  own  judgment  upon 
the  credit  of  the  witness,  and  the  weight  of  the  evidence.  Besides, 
if  the  defendant  considered  the  value  of  the  goods  an  important 
point,  it  was  open  to  him  to  offer  other  and  more  satisfactory 
evidence  upon  that  point;  but  he  gave  no  evidence  on  the  subject, 
relying  on  that  given  by  the  plaintiff. 

Motion  dismissed} 

»  Compare  Minot  v.  Boston,  201  Mass.  10,  86  N.  E.  783,  25  L.  R.  A.  (n.  s.), 
311.— Ed. 


422  TRIAL 

PETRIE  and  Another,  Executors  of  KEEBLE  v.   HANNAY, 

Baronet. 

King's  Bench.     1790. 

[Reported  3  Term  Reports,  659.] 

This  was  an  action  for  money  paid  by  the  plaintiffs,  as  executors, 
and  also  for  money  paid  by  the  testator,  to  the  use  of  the  defendant; 
for  money  had  and  received  by  the  defendant  to  the  use  of  the 
plaintiffs,  as  executors;  and  for  money  had  and  received  to  the 
use  of  the  testator,  in  separate  counts;  to  which  there  were  two 
pleas,  the  general  issue,  and  the  statute  of  limitations.  A  verdict 
having  been  found  for  the  plaintiffs  generally  on  the  first  issue, 
and  no  notice  taken  of  the  last,  the  defendant  brought  a  writ  of 
error  in  the  House  of  Lords,  on  two  grounds;  that  no  verdict  was 
given  on  the  second  plea;  and  that  the  two  separate  demands  could 
not  be  joined  in  one  action;  there  was  a  joinder  in  error,  and  a 
day  was  appointed  for  the  argument  in  the  House  of  Lords.  The 
plaintiffs  then  obtained  a  rule  to  shew  cause  why  they  should  not 
be  at  liberty  to  amend  according  to  the  judge's  notes,  by  adding  a 
verdict  for  them  on  the  second  plea,  and  by  entering  the  verdict 
on  the  counts  for  money  paid  by  the  executors,  and  for  money  had 
and  received  to  their  use. 

Er shine  and  Wood  now  shewed  cause;  and  said  that  though 
perhaps  the  court  would  have  had  no  difficulty  in  permitting  the 
amendment,  if  the  application  had  been  made  sooner,  they  hoped 
that  such  an  indulgence  would  not  be  granted  now,  as  the  de- 
fendant had  brought  a  writ  of  error  on  these  objections,  and  the 
plaintiffs  themselves  had  joined  in  error. 

Bearcroft  and  Russell,  in  support  of  the  rule,  observed  that 
the  record  still  remained  in  this  court,  through  a  transcript  of  it 
was  sent  into  the  House  of  Lords,  and  therefore  there  was  some- 
thing here  by  which  the  amendment  could  be  made;  and  that  in 
such  cases  it  was  almost  a  matter  of  course  to  permit  such  an 
amendment  on  payment  of  costs. 

BuLLER,  J.,  said  that  such  amendments  had  been  frequently 
permitted.  The  first  is  merely  a  slip  of  the  clerk,  in  not  entering 
up  the  verdict  for  the  plaintiffs  on  the  second  plea.  And  as  to 
the  second,  he  said,  he  was  clearly  of  opinion  that  it  was  not  error; 
for  though  an  executor,  when  suing  for  a  debt  due  to  the  testator, 
could  not  join  a  debt  due  to  himself  in  his  own  right;  yet  it  was 


cox   V.    HIGH    POINT,    RANDLEMAN    &    SOUTHERN    R.    R.    CO.     423 

the  constant  practice  to  join  in  the  same  declaration  several  counts 
for  money  had  and  received  by  the  defendant  to  the  use  of  the 
testator,  and  to  the  use  of  the  executor,  as  such. 

Per  curiam,  Rule  absolute.^ 


COX  V.   HIGH  POINT,   RANDLEMAN  &   SOUTHERN 
RAILROAD   COMPANY. 

Supreme  Court  of  North  Carolina.     1908. 
[Reported  149  North  Carolina,  86.] 

Clark,  C.  J.  Action  for  damages  for  wrongful  death.  In 
response  to  the  issue  as  to  damages,  the  jury  responded  "  five 
thousand."  The  court  entered  judgment  for  "  five  thousand 
dollars."     This  was  not  error. 

Damages  are  necessarily  found  in  money  values.  The  only 
words  that  could  be  entered  after  "  five  thousand  "  were  either 
"  dollars  "  or  "  cents,"  and  no  one  ever  says  "  five  thousand 
cents."  The  U.  S.  Compiled  Statutes,  sec.  3563,  provides  that 
the  "  dollar,"  not  "  cent,"  shall  be  the  unit  of  value. 

Besides,  the  verdict,  like  the  charge,  must  be  construed  with 
reference  to  the  trial.  The  complamt  was  for  thirty  thousand 
dollars.  The  evidence  as  to  damages  was  expressed  in  dollars. 
The  Judge  charged  the  jury  that  the  plaintiff's  contention  was 
that  he  was  entitled  to  recover  ''  a  certain  amount  of  damages; 
I  mean  a  certain  amount  of  compensation,  so  many  dollars  to 
compensate  for  the  value  of  his  life."  The  evidence  for  plaintiff's 
intestate  was  that  his  income  was  SI, 000  per  year.  The  table  of 
expectancy  showed  28  9-10  years.  The  judge  submitted  to  the 
jury  the  proper  rule  for  damages  and  also  left  to  them  the  defend- 
ant's contention  for  reductions.  The  whole  controversy  before 
the  jury  on  this  issue  was  in  terms  of  "  dollars,"  not  "  cents,"  and 
the  verdict  must  be  construed  in  that  connection. 

In  Stevens  v.  Smith,  15  N.  C,  292,  where  the  plamtiff  sued  on  a 
note  for  "four  hundred  and  forty-seven  dollars  and  sixty-six  cents," 
this  court  held  (Gaston,  J.)  that  it  was  not  a  variance  that  by  the 
instrument  put  m  evidence  the  defendant  promised  to  pay  "  four 
hundred  and  forty-seven  and  sixty-six  cents,"  saying  that  the  note 
being  for  the  payment  of  money,  it  was  payable  in  our  currency, 
and  "  dollars  "  were  meant,  unless  "  cents  "  were  named,  because 

1  Clark  V.  Lamb,  8  Pick.  (Mass.),  415,  19  Am.  Dec.  832,  accord.  See 
Murphy  v.  Stewart,  2  How.  (U.  S.),  263.  —  Ed. 


424  TRIAL 

the  Act  of  Congress,  2  April,  1792  (now  U.  S.  Compiled  Statutes, 
sec.  3563),  makes  the  dollar  the  miit;  that  all  other  coins  were 
recognized  as  multiples  or  fractional  parts  thereof,  and  that  the 
same  was  true  of  our  State,  Laws  1809,  ch.  775,  adding,  "  this  note 
could  not  be  understood  by  the  parties,  by  a  court,  or  by  a  jury, 
in  any  other  sense  than  as  stipulating  for  the  payment  of  four 
hundred  and  forty-seven  dollars  (or  units)  and  sixty-six  cents 
(or  hundredth  parts  thereof)."  This  case  is  cited  and  approved  in 
State  V.  Keeter,  80  N.  C,  474. 

"  The  omission  of  the  word  '  dollars  '  in  a  verdict  for  a  money 
recovery  does  not  affect  the  validity  of  the  judgment,  when  it  is 
manifest  that  dollars  were  meant,  though  it  would  be  more  regular 
to  amend  the  verdict  before  judgment."  Hopkins  v.  Orr,  1 10  U.  S., 
513;  Parks  v.  Turner,  12  How.,  39;  Beall  v.  Territory,  1  N.  M., 
519;  R.  R.  V.  Fink,  4  Tex.  Civ.  App.,  269.  "  From  the  earliest 
period  the  courts  have  freely  exercised  the  power  of  amending 
verdicts  so  as  to  correct  manifest  errors,  both  of  form  and  of  sub- 
stance, to  make  them  conform  to  the  mtention  of  the  jury."  2 
Thompson  Trials,  sec.  2642,  and  cases  cited. 

Of  course,  if  the  verdict  had  been  returned  in  open  court,  the 
Judge  should  and  doubtless  would  have  called  the  omission  of  the 
word  "  dollars  "  to  the  attention  of  the  jury.  State  v.  Godwin, 
138  N.  C,  585.  But  we  learn  that,  by  consent,  the  verdict  was 
rendered  to  the  Clerk.  If  the  matter  had  been  called  to  the  atten- 
tion of  the  Judge,  on  the  reassembling  of  the  Court,  he  would  have 
called  the  jury  together.  Petty  v.  Rousseau,  94  N.  C,  362,  and 
cases  there  cited.  But  they  may  have  dispersed.  At  any  rate  the 
matter  does  not  appear  to  have  been  called  to  the  attention  of  the 
Judge  by  exception  in  apt  time,  nor  indeed  at  all.  The  case  is 
presented  here  simply  by  the  appeal  and  assignment  of  error,  both 
of  which  could  have  been  entered  at  any  time  within  ten  days  after 
court  had  adjourned. 

In  view  of  the  pleadings,  the  evidence,  the  nature  of  the  case, 
the  contentions  of  the  parties  as  arrayed  by  the  Judge  in  his  charge, 
his  instructions  to  the  jury  and  the  absence  of  any  exception  in 
apt  time,  it  would  be  "  sticking  in  the  bark,"  indeed,  to  hold  that 
the  verdict  was  not  meant  to  be  expressed  in  dollars. 

Affirmed.^ 

1  See  a  note  to  the  principal  case  in  35  L.  R.  A.  (n.  s.),  653.  Compare 
Bacon  v.  Schepflin,  185  111.  122,  56  N.  E.  1123;  Thames  Loan  &  Trust  Co.  v. 
Beville,  100  Ind.  309;  Miller  v.  Morgan,  143  Mass.  25,  8  N.  E.  644;  Hurst  v. 
Webster  Mfg.  Co.,  128  Wis.  342,  107  N.  W.  666.  —  Ed. 


BUTCHER   V.    METTS  425 

BUTCHER,  Executor  of  BUTCHER,   v.   METTS. 

District  Court  for  the  City  and  County  of 
Philadelphia.     1836. 

[Reported  1  Miles,  153.] 

The  facts  of  the  case  were  these. 

The  only  count  in  the  declaration  was  indebitatus  assumpsit  for 
money  had  and  received  by  the  defendant  for  the  plaintiff's  use. 

The  evidence  received  on  the  trial  was,  that  Job  Butcher,  the 
plaintiff's  testator,  by  indenture  dated  in  August,  1787,  conveyed  a 
lot  of  ground  to  Adam  Metts  in  fee,  reserving  thereout  a  rent 
charge  of  12  dollars  48  cents,  payable  annually  by  Adam  Metts, 
his  heirs  and  assigns,  forever.  In  1797  Adam  Metts  died  intestate, 
leaving  a  widow,  Barbara  Metts,  and  several  children,  one  of  whom 
was  George  Metts,  the  defendant.  Barbara  Metts,  with  some,  if 
not  all  her  children,  continued  to  reside  in  a  house  erected  on  this 
lot  after  her  husband's  decease,  and  until  the  year  1827,  when  by 
virtue  of  proceedings  agreeably  to  the  act  of  assembly  made  for 
such  purposes,  a  public  street,  called  Juhana  street,  was  extended 
from  Buttonwood  street  to  Green  street;  and  this  lot  lying  in  its 
direct  course,  a  large  portion  of  the  ground,  including  all  the  build- 
ings erected  upon  the  whole  lot  at  that  time,  was  taken  for  that 
street.  Damages  appear  to  have  been  claimed  by  Barbara  Metts 
for  the  ground  thus  appropriated  to  public  use,  and  the  jury 
appointed  by  the  quarter  sessions  awarded  to  her  1400  dollars, 
without  designating  in  whose  right  they  were  given,  or  whether 
to  her  own  use,  or  the  use  of  her  children  or  of  other  persons. 
This  money  was  paid  under  an  order  of  the  quarter  sessions,  in 
favour  of  Barbara  Metts,  to  the  defendant,  who  gave  a  receipt 
signed  "  George  Metts,  for  Barbara  Metts."  Barbara  Metts 
died  some  time  afterwards,  and  the  defendant  administered  on  her 
estate,  and  on  the  11th  of  November  1831  filed  his  account  in  the 
register's  office,  in  which  he  charged  himself  with  1191  dollars  as 
damages  awarded  for  opening  Juliana  street,  leaving  209  dollars 
unaccounted  for.  This  latter  amount,  being  about  the  value  of  the 
rent  charge  reserved  to  his  testator,  the  plaintiff  alleged,  had  been 
received  by  the  defendant  from  the  county  treasurer's  office  for 
his  use,  and  some  evidence  was  given  of  admissions  by  the  defend- 
ant that  he  so  considered  it.  It  appeared  also  that  the  portion  of 
the  lot  not  taken  for  Juliana  street  consisted  of  two  pieces,  each  of  a 
triangular  shape. 


426  TRIAL 

The  jury  rendered  a  verdict  in  the  following  words:  "  The  jury 
agree  upon  a  verdict  in  favour  of  the  plaintiff  for  308  dollars  50 
cents,  conditioned  that  a  release  in  fee  be  conveyed  on  the  remain- 
ing property,  to  George  Metts  (consisting  of  two  triangles)  for  the 
estate  of  Adam  Metts."  Within  the  four  days  allowed  by  the  rule 
of  court  for  motions  for  new  trial,  and  in  arrest  of  judgment,  the 
plaintiff  filed  in  court  a  release  by  the  plaintiff  and  wife,  of  the  part 
of  the  lot  supposed  to  have  been  in  the  contemplation  of  the  jury. 

The  defendant  moved  in  arrest  of  judgment,  and  assigned  two 
reasons:  "1.  Because  the  verdict  is  illegal.  2.  Because  it  is  void 
for  uncertainty." 

Stroud,  J.  In  England,  and  such  of  our  sister  states  as  have 
followed  her  example  in  the  establishment  of  a  court  of  equity 
distinct  from  a  court  of  common  law,  the  only  question  upon  this 
verdict  would  be,  whether  the  part  of  the  finding  of  the  jury  beyond 
the  mere  assessment  of  damages,  could  be  rejected  as  surplusage. 
It  is  manifest,  however,  that  the  verdict  will  not  admit  of  this 
construction.  The  finding  is  not  of  two  distinct  parts.  They  are 
made  to  depend  on  each  other.  The  first  part  is  not  found  except 
upon  the  condition  which  is  expressed  in  what  follows.  To  pre- 
serve the  intention  of  the  jury,  the  whole  must  be  retained.  Wit- 
man  V.  Ely,  4  Serg.  &  Rawle,  264. 

Regarded  then  as  a  conditional  verdict,  can  judgment  be  ren- 
dered upon  it  in  our  courts,  where,  from  the  want  of  a  court  of 
chancery,  we  are  compelled  to  administer,  as  well  as  we  may,  a 
system  of  jurisprudence  which  combines  the  rules  of  law  and 
equity  together.  It  is  readily  conceded  that,  with  us,  actions  may 
be  grounded  upon  rights  merely  equitable,  as  in  Lang  v.  Keppele,  1 
Binn.  579;  and  we  admit  defences  of  a  similar  character.  Pollard 
V.  Schaeffer,  1  Dall.  211;  Jordan  v.  Cooper,  3  Serg.  &  Rawle  578. 
The  specific  execution  of  contracts  may  be  enforced,  also,  through 
the  medium  of  a  conditional  verdict  in  the  action  of  ejectment; 
and  where  articles  of  agreement  exist  in  covenant  or  debt.  Cases 
abound  in  support  of  this  doctrine. 

But  not  to  pursue  the  general  subject  beyond  the  exigences  of  the 
case  under  consideration,  it  may  be  stated,  as  a  general  principle, 
that  where  the  form  of  action  is  ex  contractu,  and  the  plaintiff  founds 
himself  upon  a  right  merely  equitable,  his  declaration  should  be 
assimilated  to  a  bill  in  equity,  and  should  set  forth  distinctly  the 
special  circumstances  upon  which  the  equity  he  claims  is  supposed 
to  arise.     Jordan  v.  Cooper,  3  Serg.  &  Rawle  578,  579,  581;  Wit- 


COLLINS   V.    WHITESIDE  427 

man  v.  Ely,  4  Serg.  &  Rawle  266,  267;   Reichart  v.  Beidleman,  17 
Serg.  &  Rawle  43. 

The  plaintiff  here  has  not  adopted  this  course.  His  declaration 
is  not  special.  It  does  not  profess  to  be  founded  upon  an  express 
contract;  it  is  simply  indebitatus  assumpsit  on  a  common  money 
count.  The  ground  upon  which  he  mainly  relied  on  the  trial,  was, 
that  the  money  claimed  by  him  had  been  received  by  the  defend- 
ant as  his  agent,  or  on  his  behalf,  impliedly,  under  the  decree  of  the 
court  of  quarter  sessions.  As  the  motion  before  us  is  not  for  a  new 
trial,  but  merely  in  arrest  of  judgment,  it  is  unnecessary  to  express 
any  opinion  upon  the  character  and  strength  of  this  pretension. 
We  are  confined  to  the  examination  whether  the  verdict  which  has 
been  given,  viewed  in  reference  to  the  declaration,  will  warrant  a 
judgment.  And  we  are  decidedly  of  opinion  it  will  not.  The 
finding  of  the  jury  should  have  been  absolute.  The  issue  joined 
between  the  parties  forbids  any  other.  Were  it  even  conceded  that 
the  evidence  received  on  the  trial  would  justify  the  conditional 
verdict  which  has  been  found,  in  what  manner  would  the  supreme 
court  become  possessed  of  this;  and  how,  otherwise,  could  revision 
take  place  ? 

If  the  plaintiff  supposes  the  special  circumstances  which  were  dis- 
closed on  the  trial  are  such  as  to  constitute  an  equitable  right  in 
him,  sufficient  to  sustain  an  action,  let  him  adapt  his  declaration  to 
the  suggestions  which  have  been  made.  A  demurrer  will  then 
present  the  true  question  fairly  before  the  court,  and  save  the 
necessity  of  a  jury  trial  altogether.  A  course  similar  to  this  is 
stated  to  be  correct  where  the  defence  is  purely  equitable;  Robin- 
son V.  Eldridge,  10  Serg.  &  Rawle  142;  and  the  principle  applies 
with  equal  fitness  to  declarations  on  such  rights. 

Judgment  arrested. 


COLLINS  V.   WHITESIDE. 

Court  of  Errors  and  Appeals  of  New  Jersey. 

1908. 

[Reported  75  New  Jersey  Law,  865.] 

Trenchard,  J.  This  is  an  action  upon  contract  brought  in  the 
Hudson  County  Circuit  Court. 

Reduced  to  narrative  form  the  essential  allegations  of  the  dec- 
laration are  that  in  1893  the  defendant,  Whiteside,  was  the  owner 
of  a  race  horse  and  made  an  agreement  with  the  plaintiff,  Collins, 


428  TRIAL 

that  the  plaintiff  should  enter  the  horse  in  races  in  which  he  was 
eligible  to  be  run  at  certain  specified  race  tracks  during  the  racing 
season  of  1893,  and  should  pay  for  the  benefit  of  the  defendant  all 
entrance  fees  and  forfeits  charged  by  the  racing  associations  for 
such  entering,  the  defendant  agreeing  to  repay  the  plaintiff;  that 
the  plaintiff  accordingly  paid  certain  moneys  and  the  defendant 
did  not  repay  the  same. 

The  defendant  pleaded  — first,  the  general  issue;  secondly,  that 
"  the  alleged  agreement  sued  on  was  in  contravention  of  and  in 
violation  of  the  statute  ";  thirdly,  the  statute  of  limitations. 

At  the  trial  certam  questions  in  writing  were  submitted  by  the 
judge  to  the  jury  and  were  answered  favorably  to  the  contention 
of  the  plaintiff  as  to  the  matters  of  fact  which  they  concerned. 

So  far  as  the  postea  discloses,  no  general  verdict  was  rendered 
for  either  party. 

The  main  object  of  special  questions  submitted  by  a  trial  judge 
to  a  jury  has  been  variously  stated  as  bemg  to  brmg  out  the  various 
facts  separately  in  order  to  enable  the  court  to  apply  the  law 
correctly,  and  to  guard  against  any  misapplication  of  the  law  by  the 
jury;  to  obtain  an  explanation  of  the  general  verdict;  to  test  the 
correctness  of  the  general  verdict;  to  correct  wrong  inferences 
from  the  facts  which  the  jury  finds  to  exist;  to  confine  juries  within 
their  proper  sphere,  and  to  enable  a  party  more  effectually  to  secure 
a  review  of  findmgs  of  fact.  See  20  Encycl.  PI.  &  Pr.  299,  and 
cases  there  collected. 

A  special  finding  of  facts  in  response  to  interrogatories  is  essen- 
tially different  from  a  special  verdict,  though  it  partakes  somewhat 
of  the  same  nature.  A  special  finding  is  a  response  to  a  single 
inquiry  directed  to  a  particular  fact  necessary  to  the  finding  of  a 
general  verdict,  while  a  special  verdict  is  a  finding  of  all  the  facts 
proved  or  admitted  at  the  trial.  The  office  of  a  special  finding  is 
that  if,  under  the  law,  the  particular  facts  are  inconsistent  with  the 
general  verdict,  the  former  shall  control  the  latter.  Accordingly, 
special  findings  must  always  be  coupled  with  a  general  verdict. 
See  20  Encycl.  PI.  &  Pr.  300,  and  cases  there  cited. 

Obviously,  there  being  no  general  verdict,  the  present  case 
could  not  be  treated  as  one  of  special  finding. 

The  learned  trial  judge  treated  it  as  a  special  verdict  and 
ordered  j  udgment  for  the  defendant  on  the  theory  tliat  the  contract 
was  one  prohibited  by  section  1  of  the  act  to  prevent  gaming. 
Gen.  Stat.  p.  1606. 


COLLINS   V.    WHITESIDE  429 

The  plaintifif's  writ  of  error  brings  up  for  review  the  propriety  of 
that  judgment. 

Upon  an  inspection  of  the  circuit  record,  it  may  well  be  doubted 
whether  the  verdict  in  question  is  in  the  form  of  a  special  verdict. 
But  since  both  parties  have,  without  question,  so  considered  it, 
it  will  be  so  treated.     Behrmg  v.  Somerville,  34  Vroom,  568. 

Considered  as  such,  it  furnishes  no  support  for  the  judgment. 

In  determining  what  judgment  may  be  properly  entered  upon  a 
special  verdict,  nothing  can  be  looked  at  by  the  court  except  the 
pleadings  and  the  postea.  Seabright  v.  Central  Railroad  Co.,  43 
Vroom,  8;  2  Arch.  Pr.  215;  2  Tidd,  598. 

It  has  been  held  in  this  court  that  in  dealing  with  a  special 
verdict,  the  court  draws  conclusions  of  law  from  facts  found,  but 
does  not  draw  conclusions  of  fact  from  evidence.  The  material 
facts  relied  on  must  be  expressly  found.  Behring  v.  Somerville, 
supra.  See,  also,  Bouvier  v.  Baltimore  and  New  York  Railroad 
Co.,  36  Vroom,  313. 

An  examination  of  the  pleadings  and  circuit  record  discloses 
that  the  only  material  facts  found  by  the  jury  were — first,  that 
"  the  defendant  authorized  the  plamtiff  to  enter  the  horse  '  El- 
beron  '  m  any  scheduled  races  in  which  the  horse  was  eligible  and 
in  which  the  plamtiff  thought  the  horse  had  a  chance  to  wm  a 
stake";  second,  that  "the  defendant  authorized  the  plaintiff  to 
advance  entry  fees  or  forfeit  fees  for  the  account  of  the  defendant," 
and  third,  that  "  such  fees  were  paid  by  the  plamtiff." 

Section  1  of  the  act  to  prevent  gammg  (Gen.  Stat.,  p.  1606), 
which,  in  the  view  of  the  trial  judge,  required  a  judgment  for  the 
defendant,  provides  "  that  all  wagers,  bets  or  stakes  made  to  de- 
pend upon  an}^  race  or  game,  or  upon  any  gaming  by  lot  or  chance, 
or  upon  any  lot,  chance,  casualty  or  milvno\ni  or  contingent  event, 
shall  be  unla^\^ul." 

But  it  will  be  noticed  that  the  special  verdict  does  not  show 
either  of  the  material  facts  that  a  wager  or  bet  was  made  upon  a 
race,  or  that  the  horse  ran  for  a  stake  depending  on  the  event  of  the 
race.  The  fact  that  the  plaintiff  was  authorized  "  to  enter  the 
horse  in  any  scheduled  races  in  which  the  plaintiff  thought  he  had 
a  chance  to  win  a  stake  "  does  not  show  that  the  stake  depended 
on  the  event  of  the  race  or  even  that  there  was  a  stake  to  be  won. 
The  fact  that  the  moneys  ])aid  by  the  plaintiff  were  "  entry'  fees  or 
forfeit  fees  "  is  not  alone  sufficient  to  bring  him  within  the  condem- 
nation of  section  55  of  the  Crimes  act  then  in  force  (Gen.  Stat.,  p. 
1060),  for  by  the  proviso  of  that  section  it  does  not  apply  to  fairs 


430  TRIAL 

or  exhibitions  of  any  agricultural  or  other  incorporated  society, 
nor  of  section  224  of  the  same  act  (Gen.  Stat.,  p.  1090),  because 
that  section  relates  only  to  contributions  to  make  up  a  purse.  It 
will  be  observed  that  the  material  facts  that  the  entry  or  forfeit 
fees  went  to  make  up  the  stake,  and  that  the  races  were  not  at  a 
fair  or  exhibition  of  an  agricultural  or  other  incorporated  society, 
do  not  appear  in  the  special  verdict. 

Doubtless  closer  analysis  would  disclose  that  other  essentials  of 
the  defendant's  ease  are  wanting  in  the  facts  found.  But  it  is 
sufficient  to  say  that  some  of  the  material  facts  are  not  found. 

The  defendant  is  not  entitled  to  judgment  on  the  special  verdict, 
nor  should  judgment  be  given  for  the  plaintiff.  In  such  cases  the 
proper  practice  is  to  award  a  venire  de  novo.  Bouvier  v.  Baltimore 
and  New  York  Railroad  Co.,  supra. 

Accordingly,  the  judgment  below  must  be  reversed  and  a  venire 
de  novo  awarded.  For  affirmance  —  None. 


HODGES   V.   EASTON. 

Supreme  Court  of  the  United  States.     1882. 

[Reported  106  United  States,  408.] 

Harlan,  J.  This  was  a  suit  by  Easton  and  Bigelow  against 
Hodges  and  Smith  to  recover  damages  for  the  alleged  conversion  of 
certain  wheat,  stored,  in  separate  bins,  in  the  warehouse  of  William 
H.  Valleau,  in  Decorah,  Iowa. 

The  complaint  contains  two  counts.  The  first  proceeds  upon 
the  ground  that  the  wheat,  when  so  converted,  was  the  property 
of  the  plaintiffs.  The  second  avers  that,  during  the  winter  and 
spring  of  1876,  the  First  National  Bank  of  Decorah,  Iowa,  dis- 
counted notes  and  drafts  for,  and  loaned  money  to,  said  Valleau, 
upon  the  security  of  a  large  quantity  of  wheat  delivered  to  the 
bank,  of  which  he,  Valleau,  was  then  the  owner  and  had  the  pos- 
session, and  which  was  stored,  in  separate  bins,  in  a  warehouse  in 
Decorah,  Iowa;  that  thereby  the  wheat  became  the  property  of 
the  bank;  that  subsequently,  in  April  and  May,  1876,  Valleau, 
without  repaying  such  loans  and  discounts,  and  without  the  knowl- 
edge and  consent  of  the  bank,  wrongfully  and  tortiously  took  and 
removed  the  wheat  from  the  warehouse  and  from  the  possession  of 
the  bank,  shipped  it  to  the  defendants,  at  Milwaukee,  by  whom  it 
was  wrongfully  and  tortiously  received  and  sold,  and  the  proceeds 


HODGES    V.    EASTON  431 

converted  to  their  own  use;  that  no  part  of  the  moneys,  so  loaned 
and  advanced,  has  ever  been  paid  by  Valleau,  or  by  any  one  for 
him;  that,  prior  to  this  suit,  the  bank  sold,  assigned,  and  trans- 
ferred its  right,  title,  and  interest  in  the  wheat,  and  all  right  of  ac- 
tion to  recover  the  same  or  its  value,  of  which  assignment  the 
defendants  had  notice  before  this  action;  and  lastly,  that,  prior 
to  the  commencement  of  the  action,  the  bank  and  the  plaintiffs  had 
each  demanded  from  the  defendants  the  delivery  of  the  wheat,  but 
they  had  refused  to  deliver  it,  or  any  part  thereof,  either  to  the 
bank  or  to  plaintiffs. 

The  answer  denies,  generally,  "  each  and  every  allegation, 
statement,  matter,  fact,  and  thing  in  the  complaint,  set  forth, 
alleged,  and  contained." 

The  record  states  that  the  jury,  impanelled  and  sworn  to  try 
the  issues,  "  rendered  a  special  verdict  in  answer  to  the  questions 
propounded  by  the  court."  The  questions  so  propounded,  with 
the  answers  thereto,  were  made  the  special  verdict.  The  jury 
having  been  discharged,  the  plaintiffs,  by  coimsel,  moved  for 
judgment  upon  the  special  verdict  for  the  value  of  the  wheat 
wrongfully  converted  by  defendants,  or  for  such  damages  as  the 
court  should  adjudge,  and  for  such  other  and  further  relief  as 
might  be  granted  in  the  premises.  On  a  later  day  the  defendants 
moved  to  set  aside  the  special  verdict  and  grant  a  new  trial,  upon 
the  ground,  among  others,  that  the  special  verdict  "  does  not 
contain  findings  upon  the  material  issues  in  the  case." 

These  motions  were  heard  together,  and  it  was  ordered  by  the 
court  "  that  the  motion  of  defendants  for  a  new  trial  be,  and  is 
hereby,  overruled,  and  that  the  motion  of  the  plaintiffs  for  judg- 
ment upon  the  special  verdict  of  the  jury,  and  facts  conceded  or  not 
disputed  upon  the  trial,  be,  and  is  hereby,  granted."  The  damages 
were  assessed  by  the  court  at  $12,554.89,  for  which  sum  judgment 
was  entered  against  the  defendants.  From  that  judgment  this 
writ  of  error  is  prosecuted. 

Under  the  Code  of  Practice  of  Wisconsin  the  answer  in  this  case 
puts  in  issue  every  material  allegation  in  the  complaint.  2  Tay- 
lor's Stat.  Wis.,  1871,  p.  1439.  And  since,  by  sect.  914  of  the 
Revised  Statutes,  the  practice,  pleading,  forms,  and  modes  of 
proceeding,  in  civil  causes,  other  than  equity  and  admiralty 
causes,  in  the  Circuit  and  District  Courts  of  the  United  States, 
must  conform,  as  near  as  may  be,  to  the  practice,  pleadings,  forms, 
and  modes  of  proceeding  existing  at  the  time  in  like  causes  in  the 
courts  of  record  in  the  State  within  which  such  Circuit  or  District 


432  TRIAL 

Courts  are  held,  it  was,  as  conceded  in  argument  here,  incumbent 
upon  the  plaintiff  to  prove  at  the  trial,  among  other  things,  that 
the  bank  had  sold,  assigned,  and  transferred  all  title  and  interest 
in  the  wheat,  and  thereby,  also,  a  right  to  recover  it  or  its  value. 
No  bill  of  exceptions  was  taken  showing  the  evidence  introduced 
by  either  party,  nor  was  there  a  general  verdict.  Having  regard 
alone  to  the  questions  and  answers  propounded  to  the  jury,  it  is 
clear  that  the  plaintiffs  did  not  prove  their  case,  as  made  by  the 
first  count,  which  proceeded  upon  the  ground  that  the  wheat  was 
their  property.  It  is  equally  clear  that  there  was  no  finding  upon 
the  issue,  raised  by  the  second  count,  as  to  the  alleged  assignment 
by  the  bank  to  them.  No  question  was  propounded  upon  that 
subject,  nor  was  that  point  covered  by  the  written  stipulation  as 
to  the  amount  of  freight  and  the  value  of  the  wheat.  We  infer 
from  the  oral  statement  of  counsel  for  the  plaintiffs,  that,  at  the 
trial  below,  the  assignment  by  the  banlc  was  conceded,  and  that 
the  final  judgment  was  based,  in  part,  upon  that  concession.  But 
in  that  representation,  counsel  who  appeared  in  this  court  for  the 
defendants  —  but  who  did  not  participate  in  the  trial  —  did  not 
feel  authorized  to  concur.  Looking,  therefore,  as  we  must,  to  the 
case  as  disclosed  by  the  record,  we  are  constrained  to  hold  that  the 
answers  to  the  special  questions  propounded  by  the  court,  being 
silent  as  to  the  assignment  by  the  bank,  did  not  furnish  a  basis  for 
judgment  in  favor  of  the  plaintiffs.  Without  proof  upon  that 
point,  they  were  not  entitled  to  judgment  upon  the  second  count. 
In  Patterson  v.  United  States,  2  Wheat.  221,  it  was  said,  that  if  it 
appeared  to  the  court  of  original  jurischction,  or  to  the  appellate 
court,  that  the  verdict  was  confined  to  a  part  only  of  the  matter 
in  issue,  no  judgment  could  be  rendered  upon  it.  In  Barnes  v. 
WiUiams,  11  Wheat.  415,  the  claim  of  the  plaintiff  being  founded 
upon  a  bequest  of  certain  slaves,  it  was  essential  to  a  recovery,  at 
law,  that  the  assent  of  the  executor  to  the  legacy  should  be  proved. 
This  court,  speaking  by  Mr.  Chief  Justice  Marshall,  said:  "Al- 
though in  the  opinion  of  the  court  there  was  sufficient  evidence  in 
the  special  verdict  from  which  the  jury  might  have  found  the  fact, 
yet  they  have  not  found  it,  and  the  court  could  not,  upon  a  special 
verdict,  intend  it.  The  special  verdict  was  defective  in  stating 
the  evidence  of  the  fact,  instead  of  the  fact  itself.  It  was  im- 
possible, therefore,  that  a  judgment  could  be  pronounced  for  the 
plaintiff." 

But  it  is  suggested  that  the  final  judgment,  upon  its  face,  shows 
that  it  was  not  based  exclusively  on  answers  to  the  special  ques- 


HODGES   V.    EASTON  433 

tions,  and  the  stipulation  by  the  parties  as  to  the  amount  of  freight 
and  value  of  wheat;  but  also  "  upon  facts  conceded  or  not  dis- 
puted upon  the  trial."  Although  this  court  is  not  informed  by  the 
record  as  to  what  those  conceded  and  undisputed  facts  are,  it  is 
insisted  that  we  should  presume,  in  support  of  the  judgment,  that 
they  were,  in  connection  with  the  facts  specially  found,  sufficient 
to  justify  the  action  of  the  court  below.  This  position,  it  is  con- 
tended, is  sustained  by  numerous  decisions  of  the  Supreme  Court 
of  Wisconsin,  upon  the  subject  of  general  and  special  verdicts,  as 
defined  and  regulated  by  the  laws  of  that  State  in  force  when  this 
action  was  tried. 

It  is  not  necessary,  in  this  opinion,  to  enter  upon  an  examina- 
tion of  those  decisions,  or  to  consider  how  far  the  local  law  controls 
in  determining  either  the  essential  requisites  of  a  special  verdict 
in  the  courts  of  the  United  States,  or  the  conditions  under  which  a 
judgment  will  be  presumed  to  have  been  supported  by  facts  other 
than  those  set  out  in  a  special  verdict.  The  difficulty  we  have 
arises  from  other  considerations.  The  record  discloses  that  the 
jury  determined  a  part  of  the  facts,  while  other  facts,  upon  which 
the  final  judgment  was  rested,  were  found  by  the  court  to  have 
been  conceded  or  not  disputed.  If  we  should  presume  that  there 
were  no  material  facts  considered  by  the  court  beyond  those  found 
in  the  answers  to  special  questions,  then,  as  we  have  seen,  the  facts 
found  do  not  authorize  the  judgment.  If,  on  the  other  hand,  we 
should  adjudge  it  to  have  been  defendants'  duty  to  preserve  the 
evidence  in  a  bill  of  exceptions,  and  that,  in  deference  to  the  decisions 
of  the  State  court,  it  should  be  presumed  that  the  "facts  conceded  or 
not  disputed  at  the  trial  "  were,  in  connection  with  the  facts  ascer- 
tained by  the  jury,  ample  to  support  the  judgm.ent,  we  then  have  a 
case  at  law,  which  the  jury  were  sworn  to  try,  determined,  as  to 
certain  material  facts,  by  the  court  alone,  without  a  waiver  of  jury 
trial  as  to  such  facts.  It  was  the  province  of  the  jury  to  pass  upon 
the  issues  of  fact,  and  the  right  of  the  defendants  to  have  this  done 
was  secured  by  the  Constitution  of  the  United  States.  They  might 
have  waived  that  right,  but  it  could  not  be  taken  away  by  the  court. 
Upon  the  trial,  if  all  the  facts  essential  to  a  recovery  were  undis- 
puted, or  if  they  so  conclusively  established  the  cause  of  action  as 
to  have  authorized  the  "wathdrawal  of  the  case  altogether  from  the 
jury,  by  a  peremptory  instruction  to  find  for  plaintiffs,  it  would 
still  have  been  necessary  that  the  jury  make  its  verdict,  albeit  in 
conformity  with  the  order  of  the  court.  The  court  could  not, 
consistently  with  the  constitutional  right  of  trial  by  jury,  submit 


434  TRIAL 

a  part  of  the  facts  to  the  jury,  and,  itself,  determine  the  remainder 
without  a  waiver  by  the  defendants  of  a  verdict  by  the  jury.  In 
civil  cases,  other  than  those  in  equity  and  admiralty,  and  except 
where  it  is  otherwise  provided  in  bankruptcy  proceedings,  "  the 
trial  of  issues  of  fact  "  —  that  is,  of  all  the  material  issues  of  fact  — 
"  in  the  Circuit  Courts  shall  be  by  jury,"  unless  the  parties,  or 
their  attorneys  of  record,  stipulate  in  writing  for  the  waiver  of  a 
jury.  Rev.  Stat.,  sects.  648,  649.  There  is  no  such  stipulation 
in  this  case,  and  there  is  nothing  in  the  record  from  which  such 
stipulation  or  waiver  may  be  inferred.  It  has  been  often  said  by 
this  court  that  the  trial  by  jury  is  a  fundamental  guarantee  of  the 
rights  and  liberties  of  the  people.  Consequently,  every  reasonable 
presumption  should  be  indulged  against  its  waiver.  For  these 
reasons  the  judgment  below  must  be  reversed. 

One  other  point  discussed  by  counsel  for  defendants  in  error 
must  be  noticed.  He  insisted  that  the  order  of  reversal,  if  one 
be  made,  should  be  accompanied  by  a  direction  to  the  court  below 
to  restrict  the  next  trial  to  such  issues  as  are  not  covered  by  the 
answers  of  the  jury  to  special  questions.  In  support  of  this  posi- 
tion, we  have  been  referred  to  several  adjudications  which  seem 
to  recognize  the  authority  of  the  court,  when  setting  aside  a  judg- 
ment, to  restrict  the  subsequent  trial  to  such  issues  as  were  not 
passed  upon  by  the  jury  at  the  first  trial.  Whether  this  conten- 
tion be  sound  or  not,  we  need  not  now  determine,  for  the  reason 
that  the  grounds  upon  which  it  rests  have  no  existence,  where,  as 
here,  the  case,  as  to  the  issues  triable  by  jury,  was  not  submitted 
to  the  jury  in  the  mode  required  by  law.  There  is,  then,  no  alter- 
native but  to  reverse  the  judgment,  with  directions  that  a  trial  be 
had  upon  all  the  material  issues  of  fact;  and  it  is      So  ordered.^ 


RICHARDSON  v.   WEARE. 

Supreme  Court  of  New  Hampshire.     1882. 

[Reported  62  New  Hampshire,  80.] 

Case,  for  damages  from  a  defective  highway,  tried  on  the  gen- 
eral issue.  Aiter  the  jury  had  received  general  instructions, 
which  included  the  instruction  that  if  the  injury  was  in  any  degree 
the  result  of  the  plaintiff's  want  of  ordinary  care,  the  verdict  must 

1  See  Wallingford  v.  Dunlap,  14  Pa.  31.  But  see  Stringham  v.  Cook,  75 
Wis.  589,  44  N.  W.  777.  The  principal  case  is  discussed  in  Slocum  v.  New 
Life  Ins,  Co.,  228  U.  S.  364,  384,  424,  57  L.  ed.  879,  33  S.  Ct.  523.  —  Ed. 


RICHARDSON   V.    WEARE  435 

be  for  the  defendants,  by  request  of  the  defendants'  counsel  the 
jury  were  directed  to  answer  this  question:  Did  the  injury  to  the 
plaintiff  occur  in  consequence  of  any  neglect  or  fault  on  his  part  ? 
A  general  verdict  was  returned  for  the  plaintiff,  and  the  special 
question  was  answered  in  the  affirmative.  The  court  ordered 
judgment  for  the  defendants,  and  the  plaintiff  excepted. 

Allen,  J.  It  was  decided,  in  Walker  v.  Sawyer,  13  N.  H.  191, 
196,  197,  that,  in  a  case  tried  on  the  general  issue,  the  court  would 
not  submit  a  particular  question  of  fact  to  be  found  and  returned 
by  their  verdict,  without  the  consent  of  the  parties.  But  when  it 
is  proposed  to  submit  specific  questions  to  the  jury,  it  -will  be  taken 
for  granted  that  the  parties  assent,  unless  they  object  at  the  time, 
and  before  the  jury  retires.  Willard  v.  Stevens,  24  N.  H.  271,  277; 
Allen  V.  Aldrich,  29  N.  H.  63.  And  later,  in  Barstow  v.  Sprague, 
40  N.  H,  27,  33,  it  has  been  decided  that  the  court,  against  the 
objection  of  either  or  both  parties,  may  proj^erly  direct  a  jury  to 
return,  ^vith  a  general  verdict,  answers  to  specific  questions  sub- 
mitted to  them.  No  objection  having  been  taken,  at  the  time, 
to  the  submission  of  the  special  question  to  the  jury  in  this  case, 
the  plaintiff  must  be  understood  to  have  consented,  and  the 
objection  after  verdict  comes  too  late. 

The  special  finding  of  fact  was*  conclusive  (Walker  v.  Sawj-er, 
supra,  196,  197,  Willard  v.  Stevens,  supra,  277),  and,  being  a 
material  fact  upon  which  the  general  result  depends,  it  must  con- 
trol the  general  verdict.  The  court  having  given  specific  and  cor- 
rect instructions  to  the  jury  upon  the  subject,  and  that  their  general 
verdict  must  be  for  the  defendants,  if  they  should  answer  the 
question  in  the  affirmative,  the  plaintiff  could  not  have  been 
prejudiced  nor  the  jury  embarrassed  by  the  question.  Johnson  v. 
Haverhill,  35  N.  H.  74,  87.  Upon  the  answer  to  the  special  ques- 
tion, the  defendants  were  entitled  to  a  general  verdict  and  judg- 
ment. Exceptions  overruled. 

Stanley,  J.,  did  not  sit:  the  others  concurred. 

[Stephen,  Pleading  (Williston's  edition),  *99-*102.] 

A  more  common,  because  more  convenient,  course  than  this 
[demurring  to  the  evidence],  to  determine  the  legal  effect  of  the  evi- 
dence, is,  to  obtain  from  the  jury  a  special  verdict,  in  lieu  of  that 
general  one,  of  which  the  form  has  been  already  described.  For 
the  jury  have  an  option,  instead  of  finding  the  negative  or  affirmative 
of  the  issue,  as  in  a  general  verdict,  to  find  all  the  facts  of  the  case  as 
disclosed  upon  the  evidence  before  them,  and,  after  so  setting  them 


436  TRIAL 

forth,  to  conclude  to  the  following  effect:  "  that  they  are  ignorant, 
in  point  of  law,  on  which  side  they  ought,  upon  these  facts,  to  find 
the  issue;  that  if,  upon  the  whole  matter,  the  court  shall  be  of 
opinion  that  the  issue  is  proved  for  the  plaintiff,  they  find  for  the 
plaintiff  accordingly,  and  assess  the  damage  at  such  a  sum,  &c.; 
but  if  the  court  are  of  an  opposite  opinion,  then  vice  versa."  This 
form  of  finding  is  called  a  special  verdict.  However,  as  on  a  general 
verdict,  the  jury  do  not  themselves  actually  frame  the  postea,  so 
they  have,  in  fact,  nothing  to  do  with  the  formal  preparation  of  the 
special  verdict.  When  it  is  agreed  that  a  verdict  of  that  kind  is  to 
be  given,  the  jury  merely  declare  their  opinion  as  to  any  fact  re- 
maining in  doubt;  and  then  the  verdict  is  adjusted  without  their 
further  interference.  It  is  settled,  under  the  correction  of  the 
judge,  by  the  counsel  and  attomies  on  either  side,  according  to  the 
state  of  facts  as  found  by  the  jury,  with  respect  to  all  particulars 
on  which  they  have  delivered  an  opinion;  and  with  respect  to 
other  particulars,  according  to  the  state  of  facts  which  it  is  agreed 
that  they  ought  to  find  upon  the  evidence  before  them.  The  special 
verdict,  when  its  form  is  thus  settled,  is,  together  with  the  whole 
proceedings  on  the  trial,  then  entered  on  record;  and  the  question 
of  law  arising  on  the  facts  found,  is  argued  before  the  court  in  bank, 
and  decided  by  that  court,  as  in 'case  of  demurrer.  If  the  party  be 
dissatisfied  with  their  decision,  he  may  afterwards  resort  to  a 
court  of  error. 

It  is  to  be  observed,  that  it  is  a  matter  entirely  in  the  option  of  the 
jury,  whether  their  verdict  shall  be  general  or  special.  The  party 
objecting  in  point  of  law,  camiot  therefore  insist  on  having  a  special 
verdict,  and  may  consequently  be  driven  to  demur  to  the  evidence  — 
at  least  if  he  wishes  to  put  the  objection  on  record,  without  which 
no  writ  of  error  can  be  brought,  nor  the  decision  of  a  court  of  error 
obtained.  But  if  the  object  be  merely  to  obtain  the  decision  of 
the  court  in  bank,  and  it  is  not  wished  to  put  the  legal  question  on 
record,  in  a  view  to  a  writ  of  error,  then  the  more  common  (because 
the  cheaper  and  shorter  course)  is  neither  to  take  a  special  verdict, 
nor  demur  to  the  evidence,  but  to  take  a  general  verdict,  subject  (as  the 
phrase  is)  to  a  special  case;  that  is,  to  a  written  statement  of  all  the 
facts  of  the  case,  draAvn  up  for  the  opinion  of  the  court  in  bank,  by 
the  counsel  and  attornies  on  either  side,  under  correction  of  the 
judge  at  nisi  prius,  according  to  the  principle  of  a  special  verdict, 
as  above  explained.  The  party  for  whom  the  general  verdict  is  so 
given,  is  of  course  not  entitled  to  judgment,  till  the  court  in  bank 
has  decided  on  the  special  case;   and,  according  to  the  result  of 


THAYER   ON    EVIDENCE  437 

that  decision,  the  verdict  is  ultimately  entered  either  for  him  or  his 
adversary.  A  special  case  is  not  (like  a  special  verdict)  entered  on 
record;  and  consequently  a  writ  of  error  cannot  Ije  brought  on  this 
decision.^ 

[Thayer,  Preliminary  Treatise  on  Evidence  at  the  Common  Law,  pp.  217-219.] 

The  judges  often  compelled  special  verdicts.  It  was  the  old 
law  that  a  jury,  if  it  chose  to  run  the  risk  of  a  mistake,  and  so  of  the 
punishment  by  attaint,  always  might  find  a  general  verdict.  But 
the  judges  exerted  pressure  to  secure  special  verdicts;  sometimes 
the}^  ordered  them,  and  enforced  the  instruction  by  threats,  by 
pmiishing  the  jury,  and  by  giving  a  new  trial.  As  a  matter  of 
history,  we  know  that  the  jury,  on  the  whole,  successfully  stood 
out  against  these  attempts;  and  that  in  most  cases  their  right  was 
acknowledged.  But  now  it  is  remarkable  how  judges  and  legis- 
latures in  this  country  are  unconsciously  travelling  back  towards 
the  old  result  of  controlling  the  jury,  by  requiring  special  verdicts 
and  answers  to  specific  questions.  Logic  and  neatness  of  legal 
theory  have  always  called  loud,  at  least  in  recent  centuries,  for 
special  verdicts,  so  that  the  true  significance  of  ascertained  facts 
might  be  ascertained  and  declared  by  the  one  tribunal  fitted  to  do 
this  finally  and  with  authority.  But  considerations  of  policy  have 
called  louder  for  leaving  to  the  jury  a  freer  hand.  The  working 
out  of  the  jury  system  has  never  been  shaped  merely  by  legal  or 
theoretical  considerations.  That  body  always  represented  the 
people,  and  came  to  stand  as  the  guardian  of  their  liberties;  so 
that  whether  the  court  or  the  j  ury  should  decide  a  point  could  not 
be  settled  on  merely  legal  grounds;  it  was  a  question  deeply  tinged 
with  political  considerations.  While  it  would  always  have  been 
desirable,  from  a  legal  point  of  view,  to  require  from  the  jur^- 
special  verdicts  and  answers  to  special  questions,  that  course 
would  have  given  more  power  to  the  king  and  less  to  the  people. 
It  is  one  of  the  eccentricities  of  legal  history  that  we,  in  this  coun- 
try, while  exalting  in  some  ways  the  relative  function  of  the  jury 
far  beyond  all  English  precedent,  are  yet,  in  some  parts  of  the 
country,  greatly  cuttmg  down  their  powers  in  the  particular  here 
referred  to.  Doubtless  the  judges  at  common  law  have  alwaj^s 
exercised  a  limited  power  of  questioning  the  jury  about  their 
verdicts.  But  the  general,  common-law  right  of  the  jury  to  refuse 
to  answer  such  questions  and  to  give  a  short,  general  verdict  has 
been  acknowledged. 

»  See  Traflet  v.  Empire  Life  Ins.  Co.,  64  X.  J.  L.  387,  46  Atl.  204.  —  Ed. 


438  TRIAL 

[Form  of  General  Verdict  for  Plaintiff.]  ^ 

In  the Court  of  the  County  of ,  State  of 

A.  B.,  plaintiff,      1 

against  >  Verdict. 

C.  D.,  defendant.  J 
We,  the  jury  in  the  above  entitled  cause,  find  for  the  plaintiff  in 

the  sum  of dollars  and cents. 

X.  Y.,  Foreman. 

[Form  of  Special  Verdict.]  ^ 

(Title  of  cause.) 

We,  the  jury  in  the  above  entitled  cause,  do  find  the  facts  in  the 
said  cause  to  be  as  follows:  (The  facts  found  are  stated  as  in  a 
pleading) . 

If  upon  these  facts  the  law  is  with  the  plaintiff,  then  we  find  for 

the  plaintiff,  and    assess   his  damages  at dollars  and 

cents.     And  if  the  law  is  with  the  defendant,  then  we  find  for  the 
defendant. 

X.  Y.,  Foreman. 

1  For  the  old  English  form  of  postea,  see  Tidd,  Forms,  8th  ed.,  315.  —  Ed. 

2  See,  for  the  old  English  form  of  Dostea  on  special  verdict,  Tidd,  Forms,  8th 
ed.,  325.  —  Ed. 


CHAPTER  VIII. 

MOTION  FOR  NEW  TRIAL. 

i   GIBNEY  V.   ST.   LOUIS   TRANSIT   COMPANY. 
Supreme  Court  of  Missouri.     1907. 

[Reported  204  Missouri,  704.] 

Burgess,  J.^  This  is  an  action  for  damages  for  personal  injuries 
alleged  to  have  been  sustained  by  plaintiff  on  the  13th  day  of 
June,  1902,  by  being  thrown  from  defendant's  car,  by  reason  of  its 
premature  start,  whilst  plaintiff  was  in  the  act  of  alighting  there- 
from at  the  corner  of  Taylor  and  Washington  avenues  in  the  city 
of  St.  Louis.  The  action  was  instituted  in  the  circuit  court  of  the 
city  of  St.  Louis,  and  afterwards,  on  the  18th  day  of  April,  1903,  on 
application  of  plaintiff  for  a  change  of  venue,  the  cause  was  trans- 
ferred to  the  circuit  court  of  Montgomery  county,  where  plaintiff, 
upon  trial  had,  recovered  a  verdict  and  judgment  for  the  sum  of 
thirty  thousand  dollars.  Defendant  filed  motion  for  new  trial, 
and  afterwards,  and  within  four  days  after  the  rendition  of  the 
verdict,  filed  a  supplemental  motion  for  a  new  trial,  also  motion  in 
arrest  of  judgment,  which  motions  were  by  the  court  overruled, 
and  defendant  appealed.  .  .  . 

Oee^^^^Iili^  grounds  for  new  trial  assigned  by  defendant  in  its  <;5tc<, 

motion  is  th^t  one  of  the  jurors  trying  the  cause  was  prejudiced  /'' 
and  biased. '"^  The  juror,  Samuel  A.  Moore,  upon  his  voir  dire^ 
examination  testified  in  effect  that  he  had  no  business  relations 
with  or  interest  in  the  St.  Louis  Transit  Company,  and  that  he  had 
no  bias  or  prejudice  against  the  parties,  or  either  of  them.  Upon 
these  statements  he  was  accepted  by  both  sides  as  a  competent  and 
quahfied  juror.  After  the  case  had  been  submitted  to  the  jury  it 
was  learned  that  Moore  was  one  of  a  large  number  of  employees  of 
the  defendant  company  who  went  on  a  strike  in  the  city  of  St. 
Louis  in  May,  1900,  the  strike  continuing  for  several  months, 
during  which  time  feeling  between  the  strikers  and  their  em- 
ployers ran  high;  defendant's  tracks  were  demolished  by  dyna- 
mite, and  crimes,  some  amounting  to  felonies,  were  committed  by 

'  Only  a  part  of  the  opinion  is  given.  —  Ed. 

4S9 


C  hlj\      \9 


440  MOTION    FOR   NEW   TRIAL 

the  strikers.  As  soon  as  defendant's  counsel  learned  that  Moore 
took  part  in  said  strike,  the  court  was  informed  thereof.  When  the 
motion  for  new  trial  was  heard,  Moore  was  offered  as  a  witness  for 
plaintiff.  He  did  not  deny  any  of  the  charges  made  against  him, 
his  examination  and  evidence  being  confined  solely  to  the  questions 
asked  on  the  voir  dire.  .  .  . 

That  the  juror  was  prejudiced  against  the  defendant,  and  was 
not  for  that  reason  a  competent  juror,  was  shown  by  the  affidavits 
filed  in  the  court  below,  and  this  fact  was  further  emphasized  by 
the  exceedingly  large  and  unjustifiable  verdict  rendered  by  the 
jury.  That  the  defendant  would  not  have  permitted  Moore  to 
serve  on  the  jury,  without  objection,  had  its  counsel  been  in  pos- 
session of  the  facts  disclosed  by  the  affidavits,  no  one  will  doubt, 
and  when  the  attention  of  the  court  was  called  to  these  facts  it 
\     should  have  rectified  the  mistake  by  granting  a  new  trial.  .  .  . 

The  judgment  is  reversed  and  the  cause  remanded.^ 

All  concur. 

i     WOODWARD   V.   DEAN. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 
[Reported  113  Massachusetts,  297.] 

ToRT.  After  verdict  for  the  plaintiff,  in  the  Superior  Court,  the 
defendant  moved  before  Pitman,  J.,  to  set  the  verdict  aside  on 
account  of  the  disqualification  of  a  juror.  At  the  hearing  upon  the 
motion  it  appeared  that  Henry  B.  Macomber,  one  of  the  jurors,  was 
the  husband  of  the  plaintiff's  niece.  The  court  found  as  a  matter 
of  fact,  that  the  juror  had  no  previous  knowledge  of  the  case,  and 
had  no  bias  or  prejudice,  unless  such  bias  or  prejudice  must  neces- 
sarily be  inferred  from  the  relationship;  and  that  the  defendant, 
although  he  knew  that  Macomber  was  the  plaintiff's  nephew  by 
marriage,  did  not  know  till  after  the  trial,  being  personally  unac- 
quainted with  him,  that  he  was  on  the  panel.  The  court  found 
that  there  was  no  negligence  on  the  defendant's  part,  but  ruled  as  a 
matter  of  law  that  the  mere  fact  of  the  relationship  was  not  a  suffi- 
cient ground  for  setting  aside  the  verdict,  and  refused  to  grant  the 
motion;  and  the  defendant  alleged  exceptions. 

Gray,  C.  J.  It  is  provided  by  statute  that  the  court  shall,  on 
motion  of  either  party  in  a  suit,  examine  on  oath  any  person  who 

1  -Knights  of  Pythias  v.  Steele,  107  Tenn.  1,  63  S.  W.  1126.  accord.  —  Ed. 


A.,^~(V^ 


STAMPOFSKI    V.    STEFFENS  441 

is  called  as  a  juror  therein,  to  know  whether  he  is  related  to  either 
party,  or  has  any  interest  in  the  cause,  or  has  expressed  or  formed 
any  opinion,  or  is  sensible  of  any  bias  or  prejudice  therein;  that  the 
part}^  objecting  to  the  juror  may  introduce  any  other  competent 
evidence  in  support  of  the  objection;  and  that  if  it  appears  to  the 
court  that  the  j  uror  does  not  stand  indifferent  in  the  cause,  another 
shall  be  called  and  placed  in  his  stead  for  the  trial  of  the  cause. 
Gen.  Sts.  c.  132,  §  29. 

The  evident  object  of  this  enactment  is  that  the  question  whether 
the  jurors  summoned  can  impartially  try  the  case  shall  be  ascer- 
tained and  determined  before  the  trial  proceeds.     A  party  against 
whom  a  verdict  has  been  rendered,  who  has  not  seasonably  availed 
himself  of  the  means  of  inquiry  thus  afforded  him,  may  indeed,    \     h 
upon  proof  to  the  satisfaction  of  the  court  that  a  juror  did  not     ^    ^-^■'^^ 
stand  indifferent,  by  reason  of  facts  unkno^\ai  to  the  party  until 
after  the  verdict,  be  granted  a  new  trial  or  review  at  the  discretion 
of  the  court ;  but  he  is  not  entitled  to  it  as  matter  of  law,  and  has 
no  right  of  exception  if  it  is  refused.  Jeffries  v.  Randall,  14  Mass." 
205.      Davis  i;.  Allen,  11  Pick.  466.      Kinnicutt  v.  Stockwell,  8 
Gush.  73.      Eggleston  v.  Smiley,  17  Johns.  133.      In  re  Chelsea 
Waterworks  Co.,  10  Exch.  731.  Exceptions  overruled.^ 


L    STAMPOFSKI  v.   STEFFENS. 
Supreme  Court  of  Illinois.     1875. 

[Reported  79  Illinois,  303.] 

Craig,  J,  This  was  an  action  of  assumpsit,  brought  by  appellee 
against  appellant,  to  recover  for  labor  performed  in  the  manufac- 
ture of  certain  furniture. 

1  See  Kohl  v.  Lehlbach,  160  U.  S.  293,  40  L.  ed.  432,  16  S.  Ct.  304  (juror  an 
alien) ;  Quinebaug  Bank  v.  Leavens,  20  Conn.  S7  (juror  related  to  stockholder  of 
plaintiff);  State  v.  Brockhaus,  72  Conn.  109,  43  Atl.  8.50  (juror  under  required 
age);  State  v.  Pickett,  103  la.  714,  73  N.  W.  346,  39  L.  R.  A.  302  (juror  unable 
to  read  or  write  English);  Dickenson  v.  North  Jersey  St.  Ry.  Co.,  68  N.  J.  L. 
45,  52  Atl.  214  (juror  unable  to  understand  English) ;  Watts  v.  Ruth,  30  Oh.  St. 
32  (juror  an  infant);  State  v.  Harris,  69  W.  Va.  244,  71  S.  E.  609,  50  L.  R.  A. 
(n.  s.),  933  (juror  related  to  prosecuting  witness).  But  see  Jewell  v.  Jewell, 
84  Me.  304,  24  Atl.  858,  18  L.  R.  A.  473. 

If  either  the  party  or  his  counsel  was  aware  of  the  disqualification  and  did 
not  challenge,  there  is  no  ground  for  granting  a  new  trial.  State  v.  Bussamus, 
108  1a.  11,78N.  W.  700. 

As  to  the  right  to  a  new  trial  for  allowing  or  refusing  to  allow  a  challenge 
see  Chapter  VII,  Section  II,  supra.  —  Ed. 


442  MOTION    FOR   NEW    TRIAL 

A  trial  of  the  cause  before  a  jury  resulted  in  a  verdict  and  judg- 
ment in  appellee's  favor  for  $153.08,  which  the  appellant  seeks  to 
reverse  upon  two  grounds:  first,  that  the  verdict  is  against  the 
evidence;  ^  second,  improper  conduct  on  the  part  of  one  of  the 
jurors  during  the  progress  of  the  trial  of  the  cause.  .  .  . 

It  is,  however,  claimed  that  the  judgment  should  be  reversed 
for  the  reason  that,  while  the  trial  was  in  progress,  one  of  the  juro£S,r- 
without  permission,   visited  the  place  where  the  furniture"Was 
stored  and  made  an  examination  of  it  for  himself. 

It  is  not  claimed  that  this  act  of  the  juror  was  done  with  the 
knowledge  or  consent  of  appellee  or  his  attorney ;  on  the  contrary, 
the  affidavits  filed  clearly  show  such  was  not  the  case. 

The  juror  had  no  right,  without  the  consent  of  the  parties,  t&>^ 
examine  the  furniture.     On  the  trial  of  a  cause  tlie  jury  must  rely 
upon  the  evidence  introduced  in  court;    they  cannot  go  outside 
for  the  purpose  of  getting  facts  upon  which  to  base  a  verdict. 

But  it  appears  that  appellant  was  informed  of  the  irregular 
conduct  of  the  iuror  while  the  cause  was  on  trial,  and  before  it  wa§^ 
finally  submitted  to  the  jury.  Umler  such  circunistances~ltwas 
the  duty  of  appellant  to  notify  the  court  of  the  conduct  of  the 
juror,  and  interpose  an  objection  to  the  trial  proceeding  before  a 
juror  who  had  been  guilty  of  conduct  which  was  likely  to  interfere 
.with  a  fair  and  impartial  administration  of  justice. 

This,  however,  he  failed  to  do,  but  remained  silent,  and  specu- 
lated upon  the  chances  of  a  successful  verdict  in  his  favor,  predi- 
cated upon  the  superior  information  the  jury  had  obtained  in  an 
unlawful  manner.  By  remaining  silent,  when  it  was  his  duty  to 
speak,  he  has  waived  the  right  now  to  object. 

It  was  held  in  the  case  of  Van  Blaricum  v.  The  People,  16  111. 
364,  that  a  party  had  a  right  to  have  a  cause  tried  by  a  partial 
jury,  if  he  saw  proper.  So  here,  after  appellant  received  notice  of 
the  conduct  of  the  juror,  if  he  saw  proper  to  have  him  pass  upon 
his  case  it  was  his  right  to  do  so. 

At  all  events,  his  silence,  after  he  became  aware  of  the  improper 
conduct  of  the  juror,  must  be  regarded  as  a  waiver  of  the  irregu- 
larity. 

As  the  record  discloses  no  substantial  error,  the  judgment  will 
be  affirmed.  Judgment  affirmed} 

1  A  part  of  the  opinion  in  which  it  was  held  that  the  verdict  was  not  against 
the  evidence  is  omitted.  —  Ed. 

2  Zibbell  V.  Southern  Pac.  Co.,  160  Cal.  237,  116  Pac.  513,  occord.  —Ed. 


QUAGLIANA  V.  JERSEY  CITY,  HOBOKEN  &  PATTERSON  ST.  R.  CO.      443 


/    QUAGLIANA  v.   JERSEY   CITY,    HOBOKEN   AND 
PATTERSON   STREET   RAILWAY   COMPANY. 

Supreme  Court  of  New  Jersey.     1908. 
[Reported  77  New  Jersey  Law,  101.] 

Trenchard,  J.  This  action  was  brought  by  the  plaintiff  to 
recover  compensation  for  injuries  to  his  foot  alleged  to  have  been 
caused  by  reason  of  his  being  thrown  from  and  run  over  by  a 
trolley  car  of  the  defendant  company  as  he  was  attempting  to 
board  the  car. 

The  trial  at  the  Essex  Circuit  resulted  in  a  verdict  for  the 
defendant. 

The  plaintiff  was  allowed  this  rule  to  show  cause  why  the  verdict 
should  not  be  set  aside. 

The  first  contention  of  the  plaintiff  is  that  the  verdict  was  con- 
trary to  the  weight  of  the  evidence. 

There  is  no  merit  in  this  contention.  ^  .  .  . 

The  next  contention  of  the  plaintiff  is  that  one  Bagley,  a  material 
witness  for  the  plaintiff,  was  influenced  by  the  defendant  to  absent 
himself  from  the  trial  and  that  his  absence  justifies  this  court  in 
granting  a  new  trial.  v,^ 

Misconduct  of  the  prevailing  party  or  his  attorney,  in  inducing   v    Qi^l 
a  witness  to  absent  himself  from  the  trial,  is  ground  for  a  new  trial.-^     J-\yJ<JUi, — 
Carey  v.  King,  5  Ga.  75;  Barron  v.  Jackson,  40  N.  H.  365;  Crafts 
V.  Union  Mutual  Fire  Insurance  Co.,  36  Id.  44. 

But  the  misconduct  must  be  clearly  established.  Marsh  v. 
Monckton,  1  Tyrw.  &  G.  34. 

The  affidavits  in  this  case,  taken  in  pursuance  of  the  rule,  do  not 
disclose  misconduct  upon  the  part  of  the  defendant  or  its  attorney. 
It  appears  that  both  sides  desired  to  use  Bagley  as  a  witness.  He 
was  subpoenaed  by  the  defendant,  but  not  by  the  plaintiff.  When 
he  appeared  at  the  office  of  the  attorney  of  the  defendant  at  about 
ten  o'clock  in  the  morning  of  the  day  of  trial  he  was  intoxicated, 
and  because  of  his  condition  was  informed  that  he  was  not  needed 
that  day,  but  was  requested  to  be  in  court  the  next  morning.  The 
plaintiff  voluntarily  moved  his  case  notwithstanding  the  absence 
of  the  witness.  The  action  upon  the  part  of  the  defendant's 
attorney  in  excusing  the  witness  was,  we  think,  in  good  faith  and 
evinces  no  misconduct  on  his  part.      The  controlling  reason  why 

^  The  opinion  of  the  court  on  this  point  is  omitted.  —  Ed. 


v-^-f^ 


yy" 


444  MOTION    FOR   NEW    TRIAL 

t         \  the  plaintiff  did  not  have  the  benefit  of  Bagley's  testimony  was 
djj^^^     L  that  he  had  neglected  to  subpoena  him?''^*!A.  new  trial  wsil-rtotr  be 
fj .  C  Ranted  because  of  the  absence  of  a  witness  due  to  the  negligence 

"  lof  the  applicant/    Sherrard  v.  Olden,  1  Halst.  344;  29  Cyc.  872. 
Let  the  rule  to  show  cause  be  discharged,  with  costs.^ 


/    WALLER  V.   GRAVES. 
Supreme  Court  of  Errors  of  Connecticut.     1850. 

[Reported  20  Connecticut,  305.] 

This  was  a  petition  for  a  new  trial  of  a  cause,  which  had  pre- 
viously come  before  this  court.  Graves  v.  Waller,  19  Conn.  R.  90. 
For  the  nature  of  the  action  and  the  declaration,  it  is  sufficient,  for 
the  present  purpose,  to  refer  to  the  report  of  that  case. 

On  the  trial  of  the  cause  to  the  jury,  it  became  a  material  ques- 
tion, and  one  on  which  the  determination  of  the  cause  depended, 
whether  the  words  "  rapacious  creditor,"  were  in  the  original 
manuscript,  when  it  was  handed  to  the  editor  of  the  New  Milford 
Republican,  the  newspaper  in  which  it  was  alleged  to  have  been 
published,  or  were  inserted  in  the  manuscript  or  published  in  the 
newspaper,  by  some  person,  unknown  to  the  petitioner,  and  with- 
out his  knowledge;  the  plaintiff  in  that  suit  claiming  the  former 
branch  of  the  alternative,  and  the  defendant  the  latter. 

The  plaintiff  introduced  evidence  tencUng  to  prove  his  claim. 
The  defendant,  on  the  other  hand,  introduced  Sylvanus  Merwin, 
as  a  witness,  who  testified,  that  he  drew  up  in  part  the  certificate 
on  which  the  action  was  founded;  that  he  asked  Waller  if  he  would 
sign  it  ?  That  Waller  asked  him  what  it  was  ?  That  he  then 
read  it  over  to  him;   that  he  made  no  objection  to  signing  it,  and 

1  See  1  Graham  &  Waterman,  New  Trials,  2d  ed.,  Chaps.  VI  and  VII; 
Hilliard,  New  Trials,  2d  ed.,  Chap.  XVI;   14  Encyc.  of  PI.  and  Pr.  722  et  seq. 

As  to  the  effect  of  a  failure  to  move  for  a  continuance,  see  14  Encyc.  of  PL 
and  Pr.  749.  In  Shipp  v.  Suggett,  9  B.  Mon.  (Ky.),  5,  the  court  said:  "  The 
correct  practice  in  such  case  is  for  the  party  at  once,  upon  the  discovery  of  the 
cause,  during  the  progress  of  the  trial,  which  operates  as  a  surprise  on  him,  to 
move  a  continuance  or  postponement  of  the  trial,  and  not  attempt  to  avail 
himself  of  the  chance  of  ol)taining  a  verdict  on  the  evidence  he  has  been  able  to 
introduce,  and  if  he  should  fail,  then  to  apply  for  a  new  trial  on  the  ground  of 
surprise.  To  tolerate  such  a  practice,  would  have  the  effect  of  giving  to  the 
party  surprised  an  unreasonable  and  unfair  advantage,  and  tend  to  an  unneces- 
sary and  improper  consumption  of  the  time  of  the  court."  —  Ed. 


WALLER   V.    GRAVES  445 

said  it  was  true;  that  the  words  "  rapacious  creditor,"  were  not  in 
it;  that  he  did  not  tell  Waller,  that  he  intended  to  publish  it;  and 
that  he,  Merwin,  sent  it  to  the  publisher  of  the  newspaper,  but  did 
not  authorize  the  continuance  of  it  the  second  week;  that  he  saw 
the  piece  soon  after  it  was  published,  and  discovered  that  it  was 
different  from  the  manuscript  when  sent  to  the  publisher. 

On  the  hearing  of  the  present  petition  also,  Merwin  was  a  witness, 
and  testified,  that  he  did  not  authorize  any  one  to  make  any  other 
alterations  in  the  manuscript  than  such  as  were  necessary  to  make 
its  language  grammatical. 

It  was  also  proved,  on  the  trial  of  the  original  action,  that  John 
Gaylord,  at  the  request  of  the  plaintiff  in  that  action,  went  to  the 
defendant  Waller,  with  a  paper  containing  the  publication  claimed 
to  be  libellous,  and  calling  his  attention  to  it,  asked  him  if  it  was 
true,  and  if  he  signed  it,  and  if  he  authorized  its  publication  ? 
And  the  witness  stated,  that  Waller  answered  these  questions  in  the 
affirmative,  and  that  in  the  course  of  the  conversation,  he  read  the 
piece  to  Waller. 

It  appeared  also,  that  Joseph  K.  Averill,  referred  to  in  the  pres- 
ent petition  as  the  witness  who  will  testify,  that  the  words  "  rapa- 
cious creditor,"  were  inserted  in  the  libellous  publication,  without 
the  consent  or  knowledge  of  Waller,  continued  to  reside  in  the 
town  of  New  Milford  from  the  time  of  the  publication  to  the  fall  of 
that  year  (1846),  when  he  removed  to  the  town  of  Litchfield,  where 
he  remained  until  about  the  1st  of  May,  1847,  previous  to  the  trial, 
when  he  left  Litchfield,  without  the  knowledge  of  the  petitioner, 
and  has  ever  since,  with  the  exception  of  a  short  residence  in  the 
city  of  Hartford,  continued  to  reside  without  the  limits  of  this 
state,  and  in  parts  unknown  to  the  petitioner. 

The  deposition  of  Averill  as  to  the  alteration  of  the  original 
manuscript,  was  annexed,  and  made  part  of  the  finding  of  the  court 
in  the  case.  In  that  deposition,  the  deponent  testified,  that  being 
the  publisher  of  a  weekly  newspaper  in  New  Milford,  entitled  The 
New  Milford  Repubhcan,  he  published  in  that  paper,  in  April  or 
May,  1846,  a  ^vriting  signed  by  Homer  Waller  of  New  Milford, 
reflecting  somewhat  severely  on  the  character  and  person  of  Jede- 
diah  Graves,  father-in-law  of  Sylvanus  MerT\an;  that  this  -wTiting 
came  to  the  deponent's  office  in  the  hand- writing  of  said  Merwin; 
that  the  deponent  was  instructed,  by  a  private  note  from  Merwin, 
to  make  such  alterations  in  the  l)ody  of  the  writing,  as  he  saw  fit,  to 
make  it  read  grammatically,  which  he  did  accordingly;  that  the 
words  "  rapacious  creditor,"  and  some  others,  were  inserted  by  the 


446  MOTION   FOR  NEW   TRIAL 

deponent,  without  the  consent  or  knowledge  of  Waller,  or  even  his 
approbation;  and  that  the  substance  of  the  whole  writing  was 
materially  changed  from  what  it  was  when  it  was  received  by  him 
for  publication,  without  authority  from  Waller  for  so  doing. 

The  case  was  reserved  for  the  advice  of  this  court. 

Church,  Ch.J.  The  most  aggravated  portion  of  the  libel  com- 
plained of,  is  that  by  which  the  plaintiff,  Graves,  was  exposed  to 
public  reproach  and  contempt,  as  having,  in  the  character  and 
spirit  of  a  rapacious  creditor,  shamefully  abused  Sylvanus  Merwin, 
his  son-in-law,  and  his  wife  and  children. 

This  charge  was  libellous,  and,  in  a  good  degree,  gave  sting  and 
character  to  the  whole  publication,  and  was  the  chief  ground  of  the 
plaintiff's  claim  to  the  recovery  of  damages  at  the  trial,  and  upon 
which  the  issue  of  the  cause  was  supposed  much  to  depend,  as  we 
infer  from  the  allegations  in  this  petition,  and  found  by  the  court 
to  be  true. 

The  ground  of  this  application  for  a  new  trial,  is,  that  from  evi- 
dence newly  discovered,  the  petitioner  Waller,  can  prove,  that  the 
language  "  rapacious  creditor,"  was  never  used  by  him,  in  compos- 
ing the  article,  nor  approved  by  him,  but  without  his  knowledge, 
was  inserted  by  the  editor  of  the  newspaper  in  which  it  was  pub- 
lished, and  for  which  unauthorized  act  he  ought  not  to  be  made 
responsible.  If  such  is  the  real  truth,  and  if  the  jury  had  so 
believed  upon  the  trial,  we  think  the  result  would  and  should  have 
been  a  different  one. 

There  is,  and  there  should  be,  reluctance  in  courts  to  disturb  the 
verdicts  of  juries,  unless  in  cases  where  it  is  most  manifest,  that 
either  the  law  has  been  perverted  or  mistaken,  or  that  the  losing 
party  has  not  had  a  full  and  impartial  hearing.  It  is  easy  for  a 
party  to  claim  the  discovery  of  new  evidence,  and  it  is  hard  that 
his  opponent  should  be  compelled  to  submit  to  the  expense  of  a 
second  trial,  when  such  claim  is  either  unfounded,  or  the  result  of 
negligence  in  the  first  preparation.  We  feel  all  this  in  the  present 
case,  and  with  much  hesitation  have  formed  the  opinion  now 
declared. 

To  entitle  a  party  to  a  new  trial  for  newly  discovered  evidence,  it 
is  indispensable  that  he  should  have  been  diligent  in  his  efforts  fully 
to  prepare  his  cause  for  a  trial,  at  first;  and  if  the  evidence  now 
relied  upon  could  have  been  known  before  the  trial,  by  great 
diligence,  and  was  not,  a  new  trial  will  not  be  granted.  Here  has 
been  our  greatest  doubt,  in  this  case.  But  it  appears,  that  the 
libellous  paper  was  drawn  up  chiefly  by  Sylvanus  Merwin,  and 


i 


WALLER   V.    GRAVES  447 

Waller  cannot  fairly  be  presumed  to  have  known  or  noticed  any 

peculiarity  in  its  phraseology.     In  hearing  it  read,  he  was  probably 

more  intent  on  the  narrative  of  facts,  than  on  the  language  used  in 

the  composition,  and  therefore,  was  not  put  upon  enquiry  in  regard 

to  it,  until  Averill,  the  editor,  had  gone  beyond  his  reach.     Averill 

had  not  disclosed  the  facts  which  he  knew,  to  any  body,  and  while 

in  the  vicinity,  had  every  motive  to  conceal  his  knowledge  of  the 

matter.     Under  these  peculiar  circumstances,  we  cannot  say,  that 

Waller  omitted  any  reasonable  diligence  in  preparing  his  cause  for       /) 

trial.       V^,n'vc^^X^W<_  y.-^'.A,'       .  >^-:T-  QjJ^(^^ur  V^-'*-^ 

So  if  the  evidence  now  claimed  to  be  newly  discovered,  is  merely    "fTtj^jtl 
cumulative  evidence,  we  cannot  grant  a  new  trial,  unless  the  effect  ^ 

of  it  will  be  to  render  clear  and  positive,  that  which  was  before 
equivocal  and  micertain. 

By  cumulative  evidence  is  meant  additional  evidence  of  the  same  ^ 

generaF  character,  to  the  same  fact  or  point  which  was  the  subject 
of _proof  _before.  Watson  v.  Delafield,  2  Caines,  224.  Reed  v. 
McGrew,  1  Hammond,  386.      Smith  v.  Brush,  8  Johns.  R.  84.  , 

Pike  V.  Evans,  15  Johns.  R.  210.  The  People  v.  The  Superior 
Court,  5  W^end.  114.  S.  C.  10  Wend.  285.  Guyot  v.  Butts, 
4  Wend.  579.  Gardner  v.  Mitchell,  6  Pick.  114.  Chatfield  v. 
Lathrop,  Id.,  417.     Parker  v.  Hardy,  24  Pick.  246. 

Thejact  in  dispute,  on  the  trial  of  this  cause,  was,  whether  the     P  \ 

words,  "  rapacious  creditor,"  were  a  part  of  the  libellous  writing,    - 
whenTTwas  signed  by  Waller.     That  they  were  not,  was  the  most 
material  ground  of  defence;  and  this  ground  was  supported,  by  the 
testimony  of  Merwin  alone,  who  wrote  the  article  originally,  and  ( 

who  swore  that  these  words  were  not  then  in  it. 

From  some  of  the  cases  on  this  subject,  it  ma}^  perhaps  be  in- 
ferred, that  courts  have  supposed  all  additional  evidence  to  be 
cumulative  merely,  which  conduced  to  establish  the  same  ground  ( 

of  claim  or  defence  before  relied  upon,  and  that  none  would  be 
available,  for  a  new  trial,  unless  it  disclosed  or  established  some 
new  ground.     But  this  does  not  seem  to  us  to  be  the  true  rule,  as  ( 

recognized  in  the  best  considered  cases. 

There  are  often  various  distinct  and  independent  facts  going  to 
establish  the  same  ground,  on  the  same  issue.     Evidence  is  cumu-  ' 

lative  which  merely  multiplies  witnesses  to  any  one  or  more  of  these  ">/ 

facts  before  investigated,  or  only  adds  other  circumstances  of  the 
same  general  character.     But  that  evidence  which  brings  to  YightJ ^AiM^i^^^^^ 
some  new  and  independent  truth  of  a  different  character,  although  >  ,  jj     h 

it  tend  to  prove  the  same  proposition  or  ground  of  claim  before  N  '■^-"^^-''VvtA-iX-AX^ 

Q-     n.    J  ^.    tab/ 


448  MOTION    FOR   NEW    TRIAL 

insisted  on,  is  not  cumulative  within  tlie  true  meaning  of  the  rule 
on  this  subject:  as  in  the  present  case,  Merwin  testified  only,  that 
the  libel,  as  printed  and  published,  was  not  like  the  paper  written 
by  him  and  signed  by  Waller,  in  the  particular  referred  to.  But 
now  appears  a  new  fact,  entirely  independent  of  the  testimony  of 
Merwin  —  one,  which  did  not  exist,  at  the  time  Merwin  speaks  of; 
which  is,  that  another  person,  without  the  knowledge  or  consent  of 
either  Waller  or  Merwin,  inserted  the  objectionable  words  into  the 
article,  which  appeared  in  the  newspaper. 

Suppose  a  question  on  trial  to  be,  whether  the  note  of  a  deceased 
person  has  been  paid,  and  witnesses  have  been  introduced  testify- 
ing to  various  facts  conducing  to  prove  such  payment,  and  after  a 
verdict  for  the  plaintiff,  the  executor  should  discover  a  receipt  or 
discharge  in  full,  or  had  discovered  that  he  could  prove  the  deliber- 
ate confession  of  the  plaintiff  of  the  payment  of  the  note.  There 
could  be  no  ciuestion,  in  such  a  case,  but  a  new  trial  should  be 
granted,  although  the  new  facts  go  to  prove  the  former  ground  of 
defence. 

But  there  is  another  reason,  why  we  believe  this  new  evidence  is 
available.  Merwin  testified,  that  the  words  "  rapacious  creditor," 
were  not  in  the  paper  signed  by  Waller;  the  testimony  of  John 
Gaylord  conduced  strongly  to  show  that  they  were;  and  probably 
from  this  conflict  of  proof,  the  jur}^  disregarded  this  ground  of 
defence.  This  new  evidence  would  now  come  in,  to  render  certain 
a  turning  point  in  the  case,  which  had  been  left  in  doubt  before. 
1  Sw.  Dig.  787.     Watts,  adm'r.  v.  Howard,  adm'r.  7  Mete.  478. 

We  shall  therefore  advise  a  new  trial. 

In  this  opinion,  Waite,  Storrs,  and  Hinman,  Js.  concurred. 

Ellsworth,  J.  concurred  in  the  principles  advanced  in  such 
opinion,  but  did  not  think  them  applicable  to  the  present  case; 
and  for  that  reason,  would  not  grant  a  new  trial. 

Neiv   trial   to   be   granted} 

1  See  1  Graham  &  Waterman,  New  Trials,  2d  eel,  Chap.  XIII;  HilHard, 
New  Trials,  2d  ed.,  Chap.  XV;   14  Encyc.  of  PI.  and  Pr.  790  el  seq. 

In  Glassford  v.  Lewis,  82  Hun  (N.  Y.),  46,  48,  31  N.  Y.  Supp.  162,  the  court 
said: 

"It  must  appear  that  the  evidence  has  been  discovered  since  the  trial; 
that  it  could  not  have  been  obtained  upon  the  former  trial  by  the  exercise  of 
reasonable  diligence;  that  it  is  material  to  the  issue  and  goes  to  the  merits  of 
the  case;  that  it  is  not  merely  cuuuilative,  and  that  its  character  is  such  that 
it  would  probably  have  changed  the  result.  When  these  facts  appear  and  the 
court  is  satisfi(!d  that  the  ends  of  justice  will  Ije  promoted  by  allowing  the  mov- 
ing party  an  opportunity  to  present  the  newly  discovered  evidence,  the  motion 
will  be  granted."  —  Ed. 


HAWES    V.    GUSTIN  449 

I    HAWES   V.   GUSTIN. 
Supreme  Judicial  Court  of  Massachusetts.     1861. 
[Reported  2  Allen,  402.] 

Complaint  under  St.  1859,  c.  239,  charging  the  defendant  with 
being  the  father  of  a  bastard  child  with  whicli  the  comi)lainant 
was  pregnant. 

There  was  a  trial  resulting  in  a  verdict  of  guilty;  the  defendant 
alleged  exceptions  on  the  ground  of  the  incompetency  of  one  of  the 
jurors;  the  exceptions  were  sustained. 

At  the  second  trial  in  the  superior  court,  before  Vose,  J.,  the 
complainant  was  called  as  a  ^\dtness,  and  was  allowed  to  testify, 
under  objection,  that  she  in  the  time  of  her  travail  accused  the 
defendant  of  being  the  father  of  her  child.  The  judge,  however, 
before  the  introduction  of  any  further  evidence,  ruled,  upon  recon- 
sideration, that  the  evidence  was  incompetent,  and  directed  the 
answer  to  be  striken  out,  saying  that  it  would  not  be  regarded  by 
the  jury  as  a  part  of  the  evidence  in  the  case.  .  .  . 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions.^ 

Dewey,  J.      The  Gen.  Sts.  c.  72,  authorizing  proceedings  to 
charge  the  father  of  a  bastard  child  with  contributing  to  its  main- 
tenance, have  materially  changed  the  provisions  found  in  the  Rev.        /  -J   /iLA^AM^ 
Sts.  c.  49.    f^.^C^  V     '--^^l^v       /  2^t'/'>tc  O.    "^^  :■'  :'■•..</  ,^vU^  ^  ^^ZlL 

In  the  particular  of  requiring  the  mother  to  accuse  the  putative"  /-a>'^-''|o-'|a^^>~^-«-a 
father  in  the  time  of  her  travail,  the  necessity  of  proof  of  such  fact 
no  longer  exists.  It  is  competent  evidence,  and  may  be  used  as 
corroborating  the  testimony  of  the  mother.  SucE^l)eing  its  pur- 
pose, it  should  of  course  more  properly  be  shown  by  the  testimony 
of  other  persons.  If  anj^  error  was  committed  by  the  presidilig 
judge  in  allowing  the  mother  in  the  first  instance  to  testify  to  this 
fact,  it  was  at  once  corrected,  and  the  answer  of  the  witness  as  to 
the  inquiry  stricken  out;  and  the  jury  were  instructed  not  to 
regard  this  as  a  part  of  the  evidence  in  the  case.  This  it  was  com- 
petent for  the  court  to  do,  though  it  is  a  power  to  be  exercised  veiy 
cautiously,  and  accompanied  by  such  statements  as  will  lead  the 
jury  fully  to  understand  that  the  evidence  is  not  to  be  allowed  to 
have  any  effect  upon  their  minds.  .  .  .       Exceptions  overruled!^ 

*  The  statement  of  facts  is  abridged.  —  Ed. 

^  But  if  the  elTeot  of  the  evidence  improperh'  admitted  is  not  really  removed, 
anew  trial  should  be  granted.  Waldron  v.  Waldron,  156  U.  S.  361,  39  L.  ed. 
453,  15  6.  Ct.  383.  —  Ed. 


(U-il^^- 


450  MOTION    FOR   NEW   TRIAL 

/     CHEATHAM   v.   ROBERTS. 
Supreme  Court  of  Arkansas.     1861. 

[Reported  23  Arkansas,  651.] 

Fairchild,  J.  Roberts  brought  an  action  of  assumpsit  against 
Cheatham,  on  an  account  for  about  one  hundred  and  eighty-six 
dollars,  of  which  nearly  all  was  charged  for  money  advanced  to 
steamboats  for  freight  and  charges  upon  goods  left  for  Cheatham 
upon  the  wharf-boat  of  Roberts ;  but  an  item  of  fifteen  dollars  was 
charged  for  storing  the  merchandize  on  which  advances  had  been 
made,  and  for  storing  other  merchandize.  It  did  not  appear  in 
proof,  on  the  trial,  that  any  other  merchandize  than  that  on  which 
advances  had  been  made,  had  been  stored  by  Roberts,  whence 
it  is  argued  that  there  is  a  want  of  evidence  to  sustain  the  charge 

,  for  storage;  but  the  proof  was,  that  it  was  worth  fifteen  dollars  to 
store  the  goods  mentioned  in  the  account. 

The  only  witness,  who  testified  in  the  case,  had  personal  knowl- 
edge of  the  correctness  of  the  charges,  except  of  the  items  charged 
from  the  9th  of  June  to  the  4th  of  September,  1856,  and  these  he 
supposed  to  be  correct,  as  he  had  seen  the  steamboat  receipts  to 
Roberts  for  the  amounts  charged.  This  evidence  was  received  by 
the  court  sitting  as  a  jury  without  objection  from  the  defendant. 

■  If  the  testimony  had  been  resisted  as  incompetent,  either  when 
offered,  or  upon  motion  to  exclude  it  after  it  was  given,  the  court 
would  doubtless  have  sustained  the  objection  to  its  admissibility, 
or  would  have  disregarded  it  at  the  request  of  the  defendant,  as  on 
a  motion  to  exclude,  had  the  trial  been  by  a  jury;  or,  on  the  motion 
of  the  defendant,  the  court  might  have  declared  it  as  law  that  the 
^evidence  was  not  to  be  considered.  But  when  the  evidence  was 
before  the  court  sitting  as  a  jury,  we  cannot  say  that  the  court 
ought  not  to  have  taken  it  into  consideration  in  its  finding,  any 
more  than  we  could  say  a  jury  should  not  consider  it  in  making 
their  verdict.  In  either  case,  it  belongs  to  the  tribunal  of  fact  to 
judge  as  it  may  from  the  facts  proved.  When  the  defendant 
-raised  the  question  upon  the  legal  character  of  this  evidence,  for 
the  first  time,  in  his  motion  for  a  new  trial,  he  did  not  present  any 
point  of  law  for  adjudication,  but  only  appealed  to  the  discretion 
of  the  court  for  a  favor  to  be  extended  to  him ;  and  its  refusal  was 
not  an  error  of  law. 

The  judgment  is  affirmed. 


(K 


DOE  dem.    LORD  TEI'NHAM  v.    TYLER  451 

l_     FARR  V.   FULLER. 
Supreme  Court  of  Iowa.     1859. 
[Reported  8  Iowa,  347.] 

Trespass.  Trial  and  verdict  for  defendant.  Motion  for  a  new- 
trial  sustained,  and  defendant  appeals.  The  other  material  facts 
sufficiently  appear  in  the  opinion. 

Wright,  C.  J.^  The  record  shows  that  the  new  trial  was  granted, 
"  for  the  reason  that  the  instructions  to  the  jury  were,  and  are, 
erroneous."  These  instructions  were  asked  by  the  defendant  and 
given,  and  are  all  embodied  in  the  bill  of  exceptions.     It  does  not  /r 

appear  that  plaintiff  made  any  objections  to  said  instructions,  at 
the  time  they  were  given;  and  the  defendant  now  insists  that  it  was 
too  late  to  do  so,  after  the  rendition  of  the  verdict.      To  sustain 
this  position,  we  are  referred  to  the  rule  recognized  by  this  court, 
in  RawUns  v.  Tucker,  3  Iowa,  213,  and  other  cases,  to  the  effect       y 
^^^^jDarty  vnW  not  be  allowed  to  assign  error  upon  instructions)"  , 
to  which  he  made  no  objections  at  the  time  they  were  given,.    This-^ 
case  does^oT  come  within  the  rule  referred  to,  for  the  reason  that    1 
the  court  below  has,  by  granting  a  new  trial,  admitted  the  error  in  1         y,^ 
giving  the  instructions,  and  taken  steps,  at  the  earliest  possible  f        /maX*— 
moment,  to  correct  the  same.     It  was  perfectly  competent  for  the    > 
district  court,  upon  its  attention  being  called  to  the  motion,  to 
order  a  new  trial,  when  satisfied  that  an  error  had  been  committed 
to  the  prejudice  of  the  plaintiff,  whether  exceptions  were  taken  to  \ 
the  action  of  the  court  at  the  time,  or  not.     While  we  would  not 
have  interfered,  if  the  motion  had  been  overruled,  neither  A\'ill  we 
when  granted.  .  .  .  Judgment  affirmed.^ 


/     DOE  DEM.   LORD   TEYNHAM   v.   TYLER. 

Common  Pleas.     1830. 

[Reported  6  Bingham,  561.] 

The  question  raised  in  this  ejectment  was,  whether  Henry,  the 
twelfth  Lord  Teynham,  was  of  sound  mind  when  he  suffered  a  / 

recovery  in  1789.      There  was  conflicting  evidence  on  the  point;        ftTX^    I  ''^ 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 

"^  As  to  the  power  of  the  trial  court  to  grant  a  new  trial  on  the  ground  of 
errors  of  law  at  the  trial  to  which  no  exception  has  been  taken,  see  Valerius  v. 
Richard,  57  Minn.  443,  59  N.  W.  534;  Standard  Oil  Co.  v.  Amazon  Ins.  Co. 
79  X.  Y.  506.  —  Ed. 


h 


M' 


452  MOTION    FOR   NEW   TRIAL 

but,  in  the  opinion  of  the  Court  and  jury,  the  evidence  in  favor  ot 
his  lordship's  being  of  sound  mind  preponderated,  and  on  that 
ground  a  verdict  was  found  for  tlie  defendant. 

A  great  numl^er  of  witnesses  spoke  to  his  lordship's  competency 
to  transact  all  ordinary  business;  and,  among  other  evidence  to 
this  effect,  the  accounts  of  a  deceased  steward  were  put  in,  which 
it  was  assumed  his  lordship  had  examined  and  settled. 

These  accounts  were  handed  to  the  jury,  and  commented  on  by 
the  counsel  for  the  defendant  as  being  important  to  his  case. 

The  accounts,  however,  purporting  to  discharge  the  steward 
as  well  as  to  charge  him. 

Jones  Serjt.  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground, 
among  other  objections  (see  atite,  390),  that  those  accounts  had 
been  improperly  received  in  evidence,  inasmuch  as  on  the  whole 
they  tended  to  discharge  the  steward;  and  the  only  ground  on 
which  such  documents  could  be  received  in  evidence,  was,  as  charg- 
ing the  deceased  person,  and  so  being  against  his  interest.  War- 
ren V.  Greenville,  2  Str.  1129,  Goodtitle  v.  Chandos,  2  Burr.  1065, 
Higham  i\  Ridgway,  10  East,  109,  Outram  v.  Morewood,  5  T.  R. 
121,  Roe  dem.  Brune  v.  Rawlings,  7  East,  279,  Calvert  v.  Arch- 
bishop of  Canterbury,  2  Esp.  646,  Barry  v.  Bebbington,  4  T.  R.  514. 

The  court,  upon  hearing  the  report  of  the  trial  read,  stopped 

Wilde  Serjt.,  who  was  to  have  shewn  cause,  and  called  on  Jones, 

^^^  I  to  shew  that  there  was  not  enough  to  sustain  the  verchct,  inde- 

,'<Ji/^.y-^^'^^      pendently  of  the  evidence  objected  to. 
^        '     '■  :  ■  He  contended,  that  it  was  impossible  for  the  court  to  discrimi- 

nate between  the  effects  produced  by  each  parcel  of  evidence  on 
the  mind  of  the  jury,  or  to  determine  that  the  verdict  was  not 
altogether  occasioned  by  the  very  lot  of  evidence  now  objected  to; 
/  and  that  a  new  trial  ought  to  be  granted,  if  that  evidence  were 
clearly  inadmissible. 

TiNDAL,  C.  J.  This  rule  must  be  discharged.  I  T\dll  assume  for 
the  purpose  of  this  discussion,  though  I  give  no  opinion  on  the  point, 
as  we  have  not  heard  the  other  side,  that  the  evidence  in  question 
ought  not  to  have  been  received.  But  the  Court  will  not  close  their 
eyes  to  the  rest  of  the  evidence;  and  if  they  see  that  there  is 
enough,  not  merely  to  make  the  scales  hang  even,  but  greatly  to 
preponderate  in  favour  of  the  defendant,  they  will  not  send  the 
cause  to  a  jury  again.  It  has  been  contended,  that  we  are  to 
analyse  the  evidence  by  a  difficult  process,  and  to  discriminate  the 
precise  effect  produced  on  the  mind  of  the  jury  of  each  portion 
of  the  proof:  but  we  have  a  much  plainer  course;  and  that  is,  to 


:\  n/- 


DOE  dem.   LORD  TEYNHAJM  v.   TYLER  453 

hear  the  report  of  the  trial,  and  to  sustain  the  verdict,  if  we  are 
satisfied  that  there  is  enough  to  warrant  the  finding  of  the  jury 
independently  of  the  e\ddence  objected  to.  On  this  principle,  the 
decisions  in  Horford  v.  Wilson,  1  Taunt.  12,  and  Nathan  v.  Buckley, 

2  B.  Moore,  153,  are  quite  in  point;  and  we  cannot  send  the  cause 
to  a  new  trial  when  the  jury  are  right  upon  that  portion  of  the 
evidence  which  is  unimpeached. 

Park,  J.      I  am  of  the  same  opinion.      I  will  assume,  for  the 
purpose  of  this  argument,  that  the  evidence  in  question  ought  not 
to  have  been  admitted;   but  when  we  look  at  the  rest  of  the  evi- 
dence in  the  cause,  its  reception  does  not  offer  the  slightest  ground 
of  objection  to  the  verdict.      It  has  been  repeatedly  ruled,  that 
though  particular  portions  of  evidence  are  objected  to,  if  the  rest  be  ' 
sufficient  to  warrant  the  conclusion  to  which  the  jury  have  come,  ; 
the  Court  will  not  interpose.    In  Horford  v.  Wilson,  Mansfield  C.  J.~~] 
said,  "  The  Court  ^\^ll  not  set  aside  a  verdict  on  account  of  the  / 
admission  of  evidence  which  ought  not  to  have  been  received,  pro-  \ 
vided  there  be  sufficient  without  it  to  authorize  the  finding  of  the  ^ 
jury";  and  the  counsel  for  the  defendant  never  objected.      The 
same  rule  was  acted  on  in  the  King's  Bench,  in  Edwards  v.  Evans, 

3  East,  451,  and  then,  in  Nathan  v.  Buckley.  This  is  no  new  point, 
and  we  are  not  exceeding  the  line  of  our  duty  in  determining 
whether  or  not  the  verdict  is  warranted  by  that  portion  of  the 
evidence  which  is  not  objected  to. 

Gaselee,  J.  The  evidence  objected  to  was  intended  to  shew 
only  one  of  various  acts,  which  all  tended  to  shew  that  the  party, 
whose  competency  was  in  question,  possessed  sufficient  faculties 
to  transact  the  ordinary  lousiness  of  life.  Its  reception,  therefore, 
could  not  have  had  any  material  influence  on  the  jury;  and,  as  the 
lessor  of  the  plaintiff  is  not  precluded  from  commencing  another 
ejectment,  I  concur  in  thinking  that  this  rule  ought  to  be  di.s- 
charged. 

BosANQUET,  J.  The  granting  a  new  trial  is  a  matter  of  discre- 
tion in  the  court,  a  discretion  indeed,  not  to  be  exercised  capri- 
ciously, but  according  to  the  rules  and  practice  of  the  Court :  and 
I  think  we  may,  according  to  those  rules,  refuse  a  new  trial  in  this 
case ;  there  being  evidence  amply  sufficient  to  support  the  verdict, 
exclusively  of  the  evidence  objected  to.  Rule  discharged.''- 

'  See  1  Wigmore,  Evidence,  sec.  21;  Wigmore,  Pocket  Code  of  Evidence 
sec.  102.  —  Ed. 


454  MOTION    FOR   NEW    TRIAL 

BARON   de   RUTZEN  and  his  wife  v.   FARR.     1^  ' 


King's  Bench.     1835. 
[Reported  4  Adolphns  and  Ellis,  53.] 


'/ 


Lord  Denman,  C.  J.^  In  order  to  prove  the  plaintiff's  title  to  a 
market,  for  disturbing  which  this  action  was  brought,  recourse  was 
had  to  certain  leases  found  among  their  muniments,  and  also  to 
certain  accounts  of  rent  for  the  same  market,  found  in  the  same 
place.  Some  of  these  were  accounts  signed  by  the  person  who  was 
then  steward  to  the  plaintiff's  ancestor,  wherein  he  charged  himself 
with  the  amount  of  such  rents.  To  these  no  objection  was  made. 
Other  accounts,  of  the  same  nature,  were  produced,  signed,  not 
by  such  steward,  but  by  a  person  styling  himself  clerk  to  such 
steward.  There  was  no  parol  evidence  to  shew  that  this  person 
was  ever  employed  by  the  steward;  but  the  papers  were  tendered 
as  speaking  for  themselves.  They  were  severally  objected  to 
when  tendered,  but  the  learned  Judge  admitted  them  in  evidence. 
We  are  clearly  of  opinion  that  they  were  not  admissible,  because 
they  do  not  purport  to  charge  the  person  whose  signature  they 
bear.  ~^ 

We  were,  however,  strongly  urged  to'discharge  this  rule  for  a  new 
trial,  even  though  this  evidence  may  have  been  improperly  re- 
ceived, on  account  of  the  manifest  preponderance  of  the  proof 
arising  from  that  which  was  unobjectionable.  To  induce  us  to 
adopt  this  course.  Doe  dem.  Lord  Teynham  v.  Tyler,  6  Bing.  561, 
was  strongly  pressed  upon  us,  founded  as  it  was  upon  some  former 
precedents  both  in  this  Court  and  in  the  Common  Pleas.  The 
same  argument  was  urged  in  the  Court  of  Exchequer,  where  evi- 
dence had  been  improperly  rejected,  in  Crease  v.  Barrett,  1  Cr. 
M.  &  R.  919,  S.  C.  3  Tyrwh.  458;  but  the  answer  was  given:  It 
may  be  that  the  evidence  may  be  readily  explained,  and  may  not 
weigh  in  the  least  against  the  very  strong  evidence  to  which  it  was 
opposed;  but  we  cannot,  on  that  account,  refuse  to  submit  the 
question  to  the  consideration  of  another  jury.  Mr.  Baron  Parke, 
who  pronounced  the  judgment  of  that  court,  discusses  the  point 
at  large;  and  a  new  trial  was  granted,  because  the  Court  could  not 
say  that  if  the  evidence  had  been  received  it  would  have  had  no 
effect  with  the  jury;  nor  that  it  was  clear,  beyond  all  doubt,  if  the 
verdict  had  be(»n  the  other  way,  that  it  would  have  been  set  aside 
as  improper. 

1  Only  the  opinion  of  the  court  is  given.  —  Ed. 


DYER   V.    UNION   RAILROAD    COMPANY  455 

In  like  manner,  we  are  not  convinced  that  the  documents  im- 
properly admitted  did  not  weigh  with  the  jury  in  forming  their 
opinion,  or  that  their  verdict,  if  given  for  the  defendant,  must  have 
been  set  aside  as  against  evidence.  On  this  point,  therefore,  the 
rule  must  be  made  absolute;  and  we  need  not  refer  to  the  numerous 
other  points  that  have  been  debated.  Rule  absolute.^ 


/ 


DYER  V.   UNION  RAILROAD   COMPANY. 

Supreme  Court  of  Rhode  Island.     1903. 

[Reported  25  Rhode  Island,  221.] 


Trespass  on  the  Case  for  negligence.  Heard  on  petition  of 
defendant  for  new  trial,  and  petition  denied. 

Per  Curiam.  The  court  is  of  the  opinion  that  evidence  as 
to  the  failure  to  ring  the  bell  on  the  car  in  question  at  the  inter- 
section of  other  streets  prior  to  the  time  of  the  accident  was  not 
proper.  AguUno  v.  R.  R.  Co.,  21  R.  I.  263.  But  a  consideration 
of  the  evidence  shows  that  the  negligence  of  the  defendaiit_ffas  so 
clearly  established  that  a  new  trial  would  be  of  no  avail,  since  it 
clearly^appears  that  the  plaintiff  was  overtaken  from  the  rear  by 
the  car  of  the  defendant  company,  which  was  then  running  at  a 
high  and  excessive  rate  of  speed.  And  the  court  fails  to  find  that 
the  damages  awarded  were  excessive. 

Petition  for  new  trial  denied.^ 

1  The  Rules  of  the  Supreme  Court,  1883,  Order  XXXIX,  rule  6  (R.  S.  c7| 
(Aug.),  1913),  provide  that  "  A  new  trial  shall  not  be  granted  on  the  ground  of  I 
misdirection  or  of  the  improper  admission  or  rejection  of  evidence,  or  because  I 
the  verdict  of  the  jury  was  not  taken  upon  a  question  which  the  judge  at  the  \ 
trial  was  not  asked  to  leave  to  them,  unless  in  the  opinion  of  the  Court  of  Ap-  \ 
peal  some  substantial  wrong  or  miscarriage  has  been  thereby  occasioned."  —  \ 
Ed.  ^"^ 

2  For  conflicting  decisions  in  the  United  States,  see  1  Wigmore,  Evidence, 
sec.  21. 

The  Xew  Jersey  Practice  Act  (1912),  sec.  27,  provides:  "  No  judgment 
-■hall  be  reversed,  or  new  trial  granted  on  the  ground  of  misdirection,  or  the 
improper  admission  or  exclusion  of  evidence,  or  for  error  as  to  matter  of  plead- 
ing or  procedure,  unless,  after  examination  of  the  whole  case,  it  shall  appear 
that  the  error  injuriously  affected  the  substantial  rights  of  a  party."  —  Ed. 


456  MOTION    FOR   NEW   TRIAL 

^     SAVERY  V.   BUSICK. 
Supreme  Court  of  Iowa.     1861. 

[Reported  11  Iowa,  487.] 

On  the  12th  of  October,  1857,  defendant  confessed  a  judgment 
before  the  clerk  of  the  District  Court  for  the  sum  of  three  hundred 
and  nine  dollars  and  fifty  cents,  being  the  supposed  balance  due  the 
,  plaintiff  on  a  fifteen  hundred  dollar  note,  dated  the  21st  of  July  and 
payable  in  six  months.  It  was  afterwards  ascertained  that  a  mis- 
take had  been  made  in  the  computation  of  interest  on  said  note,  and 
that  the  true  balance  due  was  $384.50,  being  seventy-five  dollars 
more  than  the  amount  for  which  judgment  was  confessed.  This 
;  last  named  sum  plaintiff  alleges  that  the  defendant  afterwards 

X^-  made  a  parol  promise  to  pay.  Failing  to  do  so,  a  suit  was  Ibrought 
upon  said  promise  to  recover  the  seventy-five  dollars  before  a 
magistrate.  A  trial  being  had,  a  judgment  was  rendered  in  favor 
of  plaintiff  for  the  amount  of  his  claim.  The  cause  was  taken  by 
appeal  to  the  District  Court,  and  on  a  second  trial  there,  the  plain- 
tiff claimed  to  have  shown  the  mistake  of  seventy-five  dollars  in 
the  confession  of  the  judgment  aforesaid,  and  the  defendant's 
promise  to  pay  the  same,  and  asked  the  court  to  say  to  the  jury 
that  upon  this  state  of  facts  the  plaintiff  was  entitled  to  recover; 
that  a  moral  consideration  is  sufficient  to  support  a  promise  in 
cases  where  there  was  originally  a  sufficient  valuable  consideration 
upon  which  an  action  could  have  been  sustained,  notwithstanding 
some  positive  rule  of  law  might  exempt  the  party  from  liability. 

The  court  refused  such  instruction,  and  at  the  instance  of  defend- 
ant told  the  jury  in  substance  that  a  mistake  in  the  confession  of 
the  judgment  spoken  of  was  no  sufficient  consideration  in  law,  to 
support  a  promise  to  pay  the  amount  of  the  mistake;  that  such 
mistake  could  only  be  rectified  by  appeal  to  the  Supreme  Court,  or 
motion  to  the  court  rendering  the  judgment,  or  by  proceeding  in 
equity;  and  that  if  the  jury  should  find  from  the  evidence  that  a 
judgment  had  been  rendered  in  the  District  Court  upon  a.note- 
which  constituted  any  i:)art  of  the  claim  or  promise  sued.Jipon,^, 
they  should  find  for  the  defendant. 

The  jury  in  their  retirement  gave  a  verdict  for  plaintiff  directly 
against  the  instructions  of  the  court,  which,  upon  motion  was  set 
aside,  and  a  new  trial  granted.  From  this  ruling  of  the  court  the 
appeal  comes. 


slade's  case  457 

Lowe,  C.  J.  Whatever  may  be  our  view  of  the  law  of  this  case, 
it  is  impossible  for  us  to  express  it,  or  consider  the  questions  pre- 
sented, without  going  behind  the  action  of  the  jury  in  trampling 
upon  the  authority  of  the  court,  and  thereby  giving  some  coun- 
tenance to  their  assumption.  This  we  are  unwilling  to  do  even  by 
the  slightest  implication. 

It  is  no  more  competent  for  the  jury  to  usurp  the  powers  of  the  | 
court,  than  it  is  for  the  court  to  interfere  wdth  their  province  in 
the  ascertaimnent  of  facts.  And  when  the  jury,  in  this  case, 
^ajL*,'  arrogated  to  themselves  the  right  to  determine  the  law  in  direct 
opposition  to  the  instructions  given  them  by  the  court,  they  were 
guilty  of  a  flagrant  abuse  of  their  duties  and  obligations;  and  we 
will  not  review  this  case  until  it  is  tried  upon  the  law  as  it  shall  be 
expounded  by  the  court  and  not  by  the  jury. 


Affirmed, 


SLADE'S  CASE. 
King's  Bench.     1648. 

[Reported  Style,  138.] 

The  Court  was  moved  for  Judgment  formerly  stayed  upon  a  cer- 
tificate made  by  Baron  Atkins,  that  the  verdict  passed  against  his 
opinion.  Bacon  Justice  said,  Judgments  have  been  arrested  in  the 
Common  pleas,  upon  such  certificates.     Hales  of  Councell  with  the    ~j 
Defendant  prayed,  that  this  Judgment  might  be  arrested,  and  that    V    ^2.,.<-<-^<? 
there  might  be  a  new  trj^al,  for  that  it  hath  been  done  heretofore  in  } 
like  cases.      But  Roll  Justice  held,  it  ought  not  to  be  stayed, 
though  it  have  been  done  in  the  Common  pleas,  for  it  was  too 
Arbitrary  for  them  to  do  it,  and  you  may  have  your  attaint  against 
the  Jury,  and  there  is  no  other  remedy  in  Law  for  you;  but  it  were 
good  to  advise  the  party  to  suffer  a  new  tryal  for  better  satisfac- 
tion.   And  let  the  Defendant  take  four  dayes  from  hence  to  speak  in 
arrest  of  Judgment  if  the  postea  be  brought  in,  if  not,  then  four 
days  from  the  time  it  shall  be  brought  in. 

1  Seevcrs  v.  Cleveland  Coal  Co.,  (la.,  1912)  138  N.  W.  793;  Lynch  v. 
Snead  Architectural  Iron  Works,  132  Ky.  241,  116  S.  W.  693,  21  L.  R.  A. 
(n.  s.),  852,  ax:cord.  Galligan  v.  Woonsocket  St.  Ry.  Co.,  27  R.  I.  363,  62  Atl. 
376,  contra.  Compare  Butterhof  v.  Butterhof,  84  N.  J.  L.  285,  86  Atl.  394.  — 
Ed. 


458  MOTION    FOR   NEW   TRIAL 

CUNNINGHAM  et  al.   v.   MAGOUN  et  al. 
Supreme  Judicial  Court  of  Massachusetts.     1836. 

[Reported  18  Pickering,  13.] 

Assumpsit  for  goods  sold  and  delivered.  Holwell,  one  of  the 
defendants,  did  not  appear.  The  other  defendant,  John  Magoun, 
pleaded,  that  he  never  promised  jointly  with  Hoi  well.  At  the  first 
trial  of  this  cause,  a  verdict  was  returned  for  the  defendant;  but 
a  new  trial  was  granted,  on  the  ground  that  the  verdict  was  against 
the  evidence. 

The  second  trial  was  before  Wilde,  J.  It  was  admitted,  on  the 
part  of  the  plaintiffs,  that  the  bargain  was  made  in  the  name  of 
Holwell  only,  and  that  the  goods  were  charged  to  him  on  the  books 
of  the  plaintiffs. 

(^"^Witnesses  were  produped  on  both  sides,  to  prove  and  disprove, 

^respectively,  the  e^xence  of  a  partnership  between  Holwell  and 

Magoun.      Tlie  jury  returned  a  verdict  for  the  defendant.      The 

plaintiffs  moved  for  a  new  trial,  on  the  ground,  that  the  verdict 

was  against  the  evidence. 

Shaw,  C.  J.  The  principles  upon  which  new  trials  are  granted, 
are  now  pretty  well  settled ;  and  in  general  the  difficulty  arises,  not 
so  much  from  the  uncertainty  of  the  rules,  as  from  the  almost 
infinitely  varied  combinations  of  circumstances  to  which  they  are 
to  be  applied. 

The  great  principle,  which  is  at  the  basis  of  jury  trial,  is  never 
to  be  lost  sight  of,  that  to  all  matters  of  law,  the  court  are  to 
answer,  to  all  controverted  facts,  the  jury.  The  verdict  of  a  jury 
is  practically  to  be  taken  for  truth. 

Formerly  this  distinction  was  effectually  preserved,  by  special 
pleading,  whereby  juries  were  compelled  to  answer  yes  or  no,  to  a 
precise  fact,  averred  on  one  side  and  denied  on  the  other,  and  by 
attaints  and  other  expedients,  where  juries  departed  from  the 
truth,  through  prejudice  or  corrupt  motives.  But  by  the  prevail- 
ing use,  in  modern  practice,  of  general  declarations  and  general 
issues,  the  jury  is  in  most  cases  left  to  find  a  generaLverdict^  which 
necessarily  embraces  the  whole  matter  of  law  and  fact.  The  mode 
of  trial  therefore  necessarily  is,  when  the  evidence  is  out,  for  the 
court  to  direct  the  jury  hypothetically,  adapting  the  instructions 
in  point  of  law  to  the  state  of  evidence,  putting  it  to  the  jury  to 
return  a  verdict  for  the  plaintiff  or  defendant,  as  they  shall  find 
certain  facts  proved  to  their  satisfaction  or  otherwise,  by  the  evi- 


CUNNINGHAM   V.    MAGOUN  459 

dence.  The  consequence  obviously  is,  that  the  jury,  in  finding  a 
general  verdict,  do  in  form  return  a  verdict  embracing  the  matter 
of  law  as  well  as  fact;  and,  therefore,  as  they  may  mistake  the 
instructions  of  the  court,  or  may  take  the  law  into  their  own 
Jiands,  imagining  it  to  be  severe  or  inequitable,  they  may  return  a 
verdict  manifestly  against  the  law  and  truth  of  the  case.  To 
render  such  a  mode  of  trial  safe  and  tolerable,  there  must  exist  a 
power  somewhere,  to  re-examine  verdicts  with  some  freedom,  and 
when  it  is  manifest  that  juries  have  been  warped  from  the  direct 
Une  of  their  duty,  by  mistake,  prejudice,  or  even  by  an  honest 
desire  to  reach  the  supposed  equity,  contrary  to  the  law  of  the  case, 
it  will  be  the  duty  of  the  court  to  set  the  verdict  aside.  When, 
therefore,  the  evidence  is  clear,  plain  and  strong,  and  the  law  has 
been  clearly  and  explicitly  stated  to  the  jury,  and  they  decide 
against  the  law,  it  imposes  upon  the  court  the  duty  of  interfering, 
because  it  must  be  apparent,  that  the  jury  have  either  uninten- 
tionally erred,  by  mistaking  the  terms  of  their  instructions,  or 
misapprehended  the  weight  of  the  evidence,  or  that  they  have  mis- 
taken their  duty  or  abused  their  trust.  This  will  be  more  readily 
presumed  in  case  of  a  single  vercUct,  than  in  case  of  a  second  verdict 
the  same  way. 

But  where  the  question  is  purely  matter  of  fact,  where  there  is 
evidence  for  the  minds  of  the  jury  actually  and  fairly  to  weigh  and 
balance,  where  presumptions  are  to  be  raised  and  inferences 
drawn,  and  the  jury  may  be  presumed  fairly  to  have  exercised  their 
judgment,  a  court  will  not  feel  at  liberty  to  set  a  verdict  aside, 
although  upon  the  same  evidence  they  would  have  decided  the 
other  way.  This  consideration  is  somewhat  strengthened,  where 
the  verdict  is  against  the  party  having  the  burden  of  proof. 

After  an  examination  of  the  evidence,  the  judge  concluded  thus:   ^ 
In  the  present  case,  though  there  was  strong  evidence  to  prove  a 
partnership,  yet  there  was  evidence  the  other  way,  the  burden  of 
proof  was  upon  the  plaintiffs,  and  two  juries  on  the  evidence  have    / 
decided  against  them.      We  do  not  feel  warranted  in  saying  that    \ 
they  have  done  wrong.  Judgment  on  the  verdict.^    --'^ 

^  Compare  Sprague  v.  Michell,  2  Chit.  Rep.  271;  Clark  v.  Whittaker,  19 
Conn,  319.  —  Ed. 


A  V 


460  MOTION   FOR   NEW   TRIAL 

JONES   V.   SPENCER. 

House  of  Lords.     1897. 

[Reported  77  Law  Times  Reports,  536.] 

This  was  an  appeal  from  an  order  of  the  Court  of  Appeal  (Lord 
Esher,  M.R.  and  Chitty,  L.J.,  Lopes,  L.J.  dissenting)  refusing  a 
new  trial  in  an  action  tried  before  Lawrance,  J.  and  a  jury. 

The  action  was  brought  by  the  respondent,  a  horse-dealer  in 
London,  against  the  appellant,  a  farmer  at  Bromsgrove,  in  Wor- 
cestershire, to  recover  the  sum  of  701.  for  breach  of  a  warranty  of  a 
carthorse  which  the  respondent  had  purchased  from  the  appellant 
on  a  warranty  that  the  horse  was  at  the  time  of  the  purchase  "  a 
good  worker." 

The  case  of  the  respondent  was  that  on  the  arrival  of  the  horse 
by  train  in  London  it  was  immediately  found  to  be  '*  a  shiverer," 
and  as  such  unable  to  back,  and  consequently  not  a  good  worker. 

In  support  of  his  case  the  respondent  called  several  veterinary 
surgeons  who  had  examined  the  animal  shortly  after  its  arrival  in 
London,  and  pronounced  it  to  be  a  very  bad  shiverer  and  suffering 
from  a  disease  which  must  have  been  in  existence  at  the  time  of  its 
purchase  by  the  respondent. 

On  the  other  hand,  the  appellant  called  a  number  of  witnesses 
who  had  used  the  animal  continually,  and  swore  that  up  to  the 
time  of  the  sale  the  animal  was  perfectly  sound  and  had  shown  no 
symptom  of  shivering. 

The  jury  found  for  the  respondent  for  the  amount  claimed. 

The  appellant  thereupon  applied  to  the  Court  of  Appeal  for  a 
new  trial,  on  the  ground  that  the  verdict  was  against  the  weight 
of  evidence. 

In  the  course  of  his  judgment  Lord  Esher,  M.R.  remarked  that, 
short  of  perverseness  on  the  part  of  a  jury,  it  was  nearly,  if  not 
quite,  impossible  that  a  new  trial  could  be  obtained,  on  the  ground 
that  a  verdict  was  against  the  weight  of  evidence  when  there  was 
conflicting  evidence  in  the  case. 

Lopes,  L.J.  thought  that  the  Court  of  Appeal  had  gone  rather 
too  far  in  refusing  new  trials  in  such  cases,  and  that  it  was  clear 
from  the  judgment  delivered  in  the  House  of  Lords  in  the  case  of 
the  Metropolitan  Railway  Company  v.  Wright  (54  L.  T.  Rep.  658; 
11  App.  Cas.  152)  that  a  new  trial  ought  to  be  granted  if  it  were 
necessary  to  prevent  a  miscarriage  of  justice. 


JONES    V.    SPENCER  461 

At  the  conclusion  of  the  arguments  their  Lordships  gave  judg- 
ment as  follows :  — 

The  Lord  Chancellor  (Halsbury).i  My  Lords:  I  beheve  that 
your  Lordships  are  all  agreed  that  the  result  of  this  trial  was  un- 
satisfactory. I  do  not  purpose  to  enter  into  the  question  of  the 
evidence,  because,  according  to  a  rule  which  has  been  established 
now  for  a  great  number  of  years,  when  a  verdict  is  being  set  aside, 
it  is  not  desirable  that  the  judges  who  take  part  in  the  discussion 
of  the  question  whether  or  not  there  shall  be  a  new  trial,  should 
make  any  observations  about  what  the  effect  of  the  evidence  was, 
or  what  might  or  might  not  have  been  the  proper  course  to  pursue; 
because  such  observations  are  likely  to  prejudice  the  trial  which 
may  come  on  afterwards;  therefore,  that  matter  ought  to  be  left 
untouched  by  the  tribunal  which  orders  the  new  trial.  For  these 
reasons  I  do  not  propose  to  enter  into  the  question  of  the  exact 
position  which  might  or  might  not  be  assumed  by  either  of  the 
parties  when  the  new  trial  actually  takes  place;  it  is  enough  for 
me  to  say  that  I  think  that,  taking  either  of  the  two  views  which 
have  been  suggested  more  than  once  in  the  course  of  the  argument, 
either  that  the  jurj^  were  ^vrong  in  what  they  did,  or  that  it  was  not 
sufficiently  apparent  what  was  the  question  which  they  had  to 
determine ;  at  all  events,  the  result  is  unsatisfactory,  and  the  cause 
must  be  remitted  for  another  trial.  I  have  the  less  hesitation  in 
coming  to  that  conclusion,  and  so  overruling  the  Court  of  Appeal, 
because  that  court  does  not  appear  to  me  (with  great  respect  to 
the  majority)  to  have  applied  its  mind  to  the  question  which  really 
arose,  but  they  proceeded,  apparently,  upon  some  construction 
which  had  been  placed  upon  a  former  decision  of  your  Lordships, 
introducing,  as  was  said,  a  new  rule  in  a  case  of  this  sort.  I  am 
not  aware  that  the  Court  of  Appeal  or  this  House  have  a  right  to 
introduce  any  new  rule  on  the  subject  of  a  new  trial;  the  question 
has  been  many  times  discussed,  and  certainly,  so  far  as  I  am  con- 
cerned, in  using  the  language  which  I  am  reported  to  have  used  in 
delivering  judgment  in  the  case  of  Metropolitan  Railway  Com]5any 
V.  Wright  (54  L.  T.  Rep.  658;  11  App.  Cas.  152),  I  was  not  under 
the  impression  that  I  was  suggesting  any  new  rule.  I  merely  gave 
expression  to  what  I  have  always  believed  to  be  the  rule  ever 
since  I  entered  the  profession.  It  is  a  rule  which  I  see  no  reason  to 
alter,  even  if  I  had  jurisdiction  to  do  so,  which  I  have  not,  I  am 
confident  in  the  belief  that  I  gave  utterance  to  no  new  rule,  or 

1  Concurring  opinions  of  Lords  Herschell,  Mr  cnaghten,  Morris  and 
Shand,  are  omitted.  —  Ed. 


462  MOTION    FOR   NEW   TRIAL 

suggested  that  anj'thing  had  happened  in  later  times  to  alter  the 
established  rule.  I  have  been  looking  into  the  authorities  to  see 
what  can  have  given  rise  to  the  impression  that  it  was  a  new  rule, 
and  I  find  that,  in  the  case  of  Rafael  v.  Verelst  (2  Wm.  Bl.  987), 
now  more  than  a  century  ago,  De  Grey,  C.  J.,  said  in  substance  very 
much  what  I  said  in  Metropolitan  Railway  Company  v.  Wright. 
He  says,  "  This  verdict  is  not  against  the  evidence.  The  court 
will  not  set  it  aside  merely  because  they  might  have  given  it  the 
other  way."  If  there  is  a  question  of  fact  left  to  the  jury,  and  they 
have  reasonably  answered  it,  their  verdict  cannot  be  disturbed. 
I  am  not  aware  of  any  observation  of  my  own  in  the  case  of  Metro- 
pohtan  Railway  Company  v.  Wright  which  would  suggest  any 
other  rule  than  that  which  has  certainly  been  held  as  established 
with  the  authority  of  that  learned  judge  more  than  a  century  ago. 
I  have  thought  it  right  to  say  this  because  some  misapprehension 
appears  to  have  existed  in  the  mind  of  Lord  Esher,  M.R.  that  your 
Lordships  in  this  House  had  laid  down  a  new  rule.  He  appears 
to  have  said  that  now  it  is  almost  impossible  to  get  a  new  trial; 
I  am  not  aware  of  the  impossibilit}^  and  I  am  not  aware  of  any 
authority  in  this  House  to  lay  down  any  such  new  rule  on  the  sub- 
ject. For  these  reasons  I  move  your  Lordships  that  this  judgment 
be  reversed,  and  that  the  respondent  pay  to  the  appellant  the  costs 
both  of  the  appeal  to  the  Court  of  Appeal  and  in  this  House,  and 
that  the  costs  of  the  former  trial  and  the  costs  of  the  new  trial 
should  depend  upon  the  result  of  that  trial. ^ 


BROWN,  by  his  next  friend,  v.   THE   PATERSON   PARCH- 
MENT  PAPER  COMPANY. 

Supreme  Court  of  New  Jersey.     1903. 

[Reported  69  New  Jersey  Laiv,  474.] 

On  rule  to  show  cause. 

Before  Gummere,  Chief  Justice,  and  Justices  Fort  and 
Pitney. 

Fort,  J.  The  plaintiff  recovered  a  verdict  in  the  above-entitled 
cause  for  personal  injuries.  The  character  of  the  injuries  was  not 
controverted,  nor  is  there  any  contention  here  that  the  damages 
awarded  were  excessive. 

1  Compare  Voge  v.  Penney,  74  Minn.  525,  77  N.  W.  422;  and  see  Mc- 
Donald V.  Metropolitan  St.  Ry.  Co.,  167  N.  Y.  66,  60  N.  E.  282,  supra,  p.  324. 
See  Thayer,  Preliminary  Treatise  on  Evidence,  208-210.  —  Ed. 


BROWN  V.    THE  PATERSON  PARCHMENT  PAPER  CO.     463 

There  are  no  errors  found  in  the  charge  or  the  refusals  to  charge 
of  the  learned  trial  justice. 

The  only  remaining  question  is  whether  the  verdict  should  be 
set  aside  because  against  the  weight  of  the  evidence. 

This  is  the  second  trial  of  the  issue  in  this  cause,  a  former  verdict 
in  the  cause  having  been  set  aside  because  against  the  weight  of  the 
evidence.     Brown  v.  Parchment  Paper  Co.,  36  Vroom  111. 

While  in  this  state  there  is  no  statute,  or  rule  established  by- 
decisions,  limiting  the  nimiber  of  times  the  court  may  set  aside  a 
verdict  and  grant  a  new  trial  because  it  is  against  the  weight  of  the 
evidence,  still  a  second  concurring  verdict  upon  the  same  state  of 
facts  or  on  slightly  varying  evidence  should  cause  the  court  to 
hesitate  before  granting  a  third  trial. 

The  verdict  upon  a  second  trial  should  not  be  set  aside  because 
against  the  weight  of  evidence  unless  the  court  is  satisfied  from  the 
evidence  in  the  cause  that  it  must  have  been  the  result  of  (1)  the 
disregarding  of  the  force  of  the  whole  range  of  the  unimpeached 
testimony,  or  (2)  the  palpable  failure  to  give  proper  force  to  the 
unimpeached  evidence  in  the  cause  offered  by  the  party  against 
whom  the  verdict  is  found,  or  (3)  the  giving  to  the  testimony  of  the 
prevailing  party  a  force  to  which,  under  the  law  and  the  facts,  it 
was  not  entitled,  or  (4)  the  verdict  must  have  been  controlled  by 
prejudice,  partiahty  or  passion,  and  not  based  upon  the  weighing 
of  the  conflicting  testimony  in  the  cause. 

Judge  Allen,  spealdng  for  the  Supreme  Court  of  Massachusetts, 
declares  that  "  in  this  commonwealth  there  is  no  rule  of  law  limit- 
ing the  number  of  times  that  a  judge  may  set  aside  a  verdict  as 
against  the  evidence.  On  the  other  hand,  it  has  been  recognized 
that  in  an  extraordinary  case  the  court  may  set  aside  any  number 
of  verdicts  that  might  be  returned."  Clark  v.  Jenkins,  162  Mass. 
397. 

We  would  adopt  the  same  rule,  but  think  a  second  verdict  to  be 
set  aside  should  have  in  it  some  one,  at  least,  of  the  objectionable 
elements  above  indicated. 

In  some  of  the  states  there  are  statutes  limiting  the  right  of  the 
court  to  set  aside  a  second  concurring  verdict.  In  others,  such 
limitation  is  imposed  by  a  well-settled  line  of  decisions.  These 
cases  are  gathered  and  discussed  in  14  Encycl.  PI.  &  Pr.  993. 

In  the  case  before  us  there  are  facts  from  which  the  jury  could 
reasonably  find  for  the  plaintiff,  a  boy  of  fourteen  years  of  age,  who 
was  placed  to  work  at  a  machine,  the  danger  in  operating  which, 
if  he  was  told  to  sprinkle  the  rollers,  as  he  says  he  was,  should  have 


464  MOTION    FOR   NEW   TRIAL 

been  pointed  out  to  him.  That  they  were  not  the  jury  have  found, 
and  they  have  also  found  that  such  dangers  were  not  obvious  to  a 
boy  of  his  years  and  experience.  There  is  evidence  from  which  the 
jury  might  have  found  both  these  facts  the  other  way,  but,  as  upon 
both  trials  in  this  cause  the  jury  have  found  these  facts  in  favor  of 
the  plaintiff,  we  think,  under  the  circumstances  of  the  case,  the 
rule  to  show  cause  should  be  discharged. 


WOOD   V.   GUNSTON. 
Upper  Bench.     1655. 

[Reported  Style,  466.] 

Wood  brought  an  action  upon  the  case  against  Gunston  for 
speaking  of  scandalous  words  of  him ;  and  amongst  other  words  for 
calling  him  Traytor,  and  obteyns  a  verdict  against  him  at  the  Bar, 
wherein  the  Jury  gave  1500L  dammages.  Upon  the  supposition 
that  the  dammages  were  excessive,  and  that  the  Jury  did  favour  the 
Plaintiff,  the  Defendant  moved  for  a  new  tryal.  But  Sergeant 
Maynard  opposed  it,  and  said  that  after  a  verdict  the  partiality  of 
the  jury  ought  not  to  be  questioned,  nor  is  there  any  Presidents  for 
it  in  our  Books  of  the  Law,  and  it  would  be  of  dangerous  conse- 
quence if  it  should  be  suffered,  and  the  greatness  of  the  dammages 
given  can  be  no  cause  for  a  new  tryal,  but  if  it  were,  the  dammages 
are  not  here  excessive,  if  the  words  spoken  be  well  considered,  for 
they  tend  to  take  away  the  Plaintiff's  estate  and  his  life.  Wind- 
ham on  the  other  side  pressed  for  a  new  tryal,  and  said  it  was  a 
packed  business,  else  there  could  not  have  been  so  great  dammages, 
and  the  Court  hath  power  in  extraordinary  cases,  such  as  this  is,  to 
grant  a  new  tryal.  Glyn  chief  Justice,  It  is  in  the  discretion  of  the 
Court  in  some  cases  to  grant  a  new  tryal,  but  this  must  be  a  judicial, 
and  not  an  arbitrary  discretion,  and  it  is  frequent  in  our  Books  for 
the  Court  to  take  notice  of  miscariages  of  Juries,  and  to  grant  new 
trials  upon  them,  and  it  is  for  the  peoples  benefit  that  it  should  be  so 
for  a  Jury  may  sometimes  by  indirect  dealings  be  moved  to  side 
with  one  party  and  not  to  be  indifferent  betwixt  them,  but  it 
cannot  be  so  intended  of  the  Court ;  wherefore  let  there  be  a  new 
tryal  the  next  Term,  and  the  Defendant  shall  pay  full  Costs,  and 
judgment  to  be  upon  this  Verdict  to  stand  for  security  to  pay 
what  shall  be  recovered  upon  the  next  verdict.' 

^  See  Thayer,  Preliminary  Treatise  on  Evidence,  170.  —  Ed. 


PRAED   V.    GRAHAM  465 

PRAED   V.   GRAHAM. 

Court  of  Appeal.     1889. 

[Reported  24  Queen's  Bench  Division,  53.] 

Appeal  from  a  decision  of  the  Queen's  Bench  Division. 

In  an  action  to  recover  damages  for  a  libel  contained  in  a  letter 
written  by  the  defendant  to  the  plaintiff's  wife,  the  jury  gave  a 
verdict  for  the  plaintiff  and  assessed  the  damages  at  5001. 

The  defendant  having  moved  for  a  new  trial  on  the  ground 
(inter  alia)  that  the  damages  were  excessive,  the  Queen's  Bench 
Division  dismissed  the  motion. 

The  defendant  appealed. 

Fillan,  for  the  appellant,  contended  (inter  alia)  that  the  damages 
were  so  excessive  as  to  come  within  the  definition  which  Palles, 
C.  B.,  in  McGrath  u.  Bourne,  10  Ir.  Rep.  C.  L.  (Ex.)  160,  said  had 
been  stated  by  Fitzgerald,  J.,  namely,  that  in  order  to  justify  the 
Court  in  granting  a  new  trial  on  the  ground  of  excessive  damages, 
"  the  amount  should  be  such  that  no  reasonable  proportion  exists 
between  it  and  the  circumstances  of  the  case." 

Lockwood,  Q.  C.  (Atherly  Jones,  with  him),  was  asked  to  argue 
the  question  of  damages  only. 

The  older  authorities  shew  that  the  Court  ^ill  not  grant  a  new 
trial  unless  they  can  trace  out  some  misconduct,  or  gross  error, 
or  misconception,  on  the  part  of  the  jury  in  assessing  the  damages: 
see  Mayne  on  Damages,  4th  Ed.,  p.  553,  and  the  cases  there 
collected.  There  is  nothing  to  shew  any  such  misconduct  or  error 
in  the  present  case.  If  the  true  definition  be  that  the  amount 
must  be  so  large  that  no  jury  could  reasonably  have  arrived  at  it, 
the  amount  in  this  case,  having  regard  to  all  the  circumstances, 
does  not  satisfy  that  definition.  It  certainly  seems  reasonable 
that,  with  respect  to  granting  a  new  trial  on  the  ground  of  excessive 
damages,  the  Court  should  act  upon  the  same  rule  as  is  applied 
when  a  new  trial  is  asked  for  on  the  ground  that  the  verdict  is 
against  the  weight  of  evidence.  The  jury  were  entitled  to  consider 
the  defendant's  whole  conduct  in  the  matter  from  the  time  the  libel 
was  published  down  to  and  at  the  trial,  and  to  assess  the  damages 
accordingly. 

Fillan,  replied. 

Lord  Esher,  M.  R.  In  this  case  two  questions  of  law  have 
been  discussed  which  I  desire  to  notice.  The  first  question  is, 
what  is  the  rule  of  conduct  which  should  be  followed  by  the  Court 


466  MOTION    FOR   NEW   TRIAL  , 

—  either  a  Divisional  Court  or  the  Court  of  Appeal  —  to  which 
an  application  is  made  in  such  an  action  as  an  action  for  a  libel  to 
set  aside  the  verdict  on  the  ground  that  the  damages  given  by  the 
jury  are  excessive  ?  I  think  that  the  rule  of  conduct  is  as  nearly 
as  possible  the  same  as  where  the  Court  is  asked  to  set  aside  a 
verdict  on  the  ground  that  it  is  against  the  weight  of  evidence. 
If  the  Court,  having  fully  considered  the  whole  of  the  circumstances 
of  the  case,  come  to  this  conclusion  only:  —  "  We  think  that  the 
damages  are  larger  than  we  ourselves  should  have  given,  but  not 
so  large  as  that  twelve  sensible  men  could  not  reasonably  have 
given  them,"  then  they  ought  not  to  interfere  with  the  verchct. 
If,  on  the  other  hand,  the  Court  thinks  that,  having  regard  to  all 
the  circumstances  of  the  case,  the  damages  are  so  excessive  that  no 
twelve  men  could  reasonably  have  given  them,  then  they  ought  to 
interfere  with  the  verdict.  If  the  authorities  are  looked  at  that 
will  be  found  to  be  the  rule  of  conduct  which  the  judges  have 
adopted.  If  the  Court  can  see  that  the  jury  in  assessing  damages 
have  been  guilty  of  misconduct,  or  made  some  gross  blunder,  or 
have  been  misled  by  the  speeches  of  the  counsel,  those  are  un- 
doubtedly sufficient  grounds  for  interfering  with  the  verdict,  but 
they  come  within  the  larger  rule  of  conduct  which  I  have  laid  down, 
and  are  grounds  which  are  included  in  that  rule.  I  think  that  the 
proposition  said  to  have  been  stated  by  Fitzgerald,  J.,  is  equivalent 
to  the  one  I  have  stated. 

I  desire  also  to  say  that  in  actions  of  libel  there  is  another  rule, 
which  is  this:  —  the  jury  in  assessing  damages  are  entitled  to  look 
at  the  whole  conduct  of  the  defendant  from  the  time  the  libel  was 
published  down  to  the  time  they  give  their  verdict.  They  may 
consider  what  his  conduct  has  been  before  action,  after  action, 
and  in  court  during  the  trial.  [His  Lordship  then  proceeded  to 
deal  with  the  facts  of  the  case,  and  came  to  the  conclusion  that 
the  jury  might,  not  unreasonably,  have  given  the  damages  which 
they  gave.] 

LiNDLEY  and  Lopes,  L.J  J.,  concurred. 

Appeal  dismissed. 


i 


PHILLIPS    V.    THE    SOUTH    WESTERN    RAILWAY   COMPANY       467 


PHILLIPS   V.   THE  SOUTH   WESTERN   RAILWAY 
COMPANY. 

High  Court  of  Justice,  Queen's  Bench  Division. 

1879. 

[Reported  4  Queen's  Bench  Division,  40G.]  ^ 

CocKBURN,  C.  J.  This  was  an  action  brought  by  the  plaintiff 
to  recover  damages  for  injuries  suffered,  when  traveUing  on  the 
defendants'  railway,  through  the  negligence  of  their  servants.  A 
verdict  having  passed  for  the  plaintiff  \vith  7000L  damages,  an 
application  is  made  to  this  Court  for  a  new  trial,  on  behalf  of  the 
plaintiff,  on  the  ground  of  the  insufficiency  of  the  damages  as  well 
as  on  that  of  misdirection  as  having  led  to  an  insufficient  assess- 
ment of  damages;  and  we  are  of  opinion  that  the  rule  for  a  new 
trial  must  be  made  absolute;  not  indeed  on  the  ground  of  misdirec- 
tion, for  we  are  unable  to  find  any  misdirection,  the  learned  judge 
having  in  effect  left  the  question  of  damages  to  the  jury,  with  a  due 
caution  as  to  the  limit  of  compensation,  though  we  think  it  might 
have  been  more  explicit  as  to  the  elements  of  damage. 

It  is  extremely  difficult  to  lay  down  any  precise  rule  as  to  the 
measure  of  damages  in  cases  of  personal  injury  like  the  present. 
No  doubt,  as  a  general  rule,  where  injury  is  caused  to  one  person 
by  the  wrongful  or  negligent  act  of  another,  the  compensation 
should  be  commensurate  to  the  injury  sustained.  But  there  are 
personal  injuries  for  which  no  amount  of  pecuniary  damages  would 
afford  adequate  compensation,  while,  on  the  other  hand,  the 
attempt  to  award  full  compensation  in  damages  might  be  attended 
with  ruinous  consequences  to  defendants  who  cannot  always,  even 
by  the  utmost  care,  protect  themselves  against  carelessness  of 
persons  in  their  employ.  Generally  speaking,  we  agree  with  the 
rule  as  laid  down  by  Brett,  J.,  in  Rowley  v.  London  and  North 
Western  Ry.  Co.  an  action  brought  on  the  9  &  10  Vict.  c.  93,  that 
a  jury  in  these  cases  "  must  not  attempt  to  give  damages  to  the 
full  amount  of  a  perfect  compensation  for  the  pecuniar}^  injury, 
but  must  take  a  reasonable  view  of  the  case,  and  give  what  they 
consider  under  all  the  circumstances  a  fair  compensation."  And 
this  is  in  effect  what  was  said  by  Mr.  Justice  Field  to  the  jury  in 
the  present  case.  But  we  think  that  a  jury  cannot  be  said  to  take 
a  reasonable  view  of  the  case  unless  they  consider  and  take  into 

1  Affirmed  5  Q.  B.  D.  78.  —  Ed. 


468  MOTION    FOR    NEW    TRIAL 

account  all  the  heads  of  damage  in  respect  of  which  a  plaintiff 
complaining  of  a  personal  injury  is  entitled  to  compensation. 
These  are  the  bodily  injury  sustained;  the  pain  undergone;  the 
effect  on  the  health  of  the  sufferer,  according  to  its  degree  and  its 
probable  duration  as  likely  to  be  temporary  or  permanent;  the 
expenses  incidental  to  attempts  to  effect  a  cure,  or  to  lessen  the 
amount  of  injury;  the  pecuniary  loss  sustained  through  inability 
to  attend  to  a  profession  or  business  as  to  which,  again,  the  injury 
may  be  of  a  temporary  character,  or  may  be  such  as  to  incapacitate 
the  party  for  the  remainder  of  his  life.  If  a  jury  have  taken  all 
these  elements  of  damage  into  consideration,  and  have  awarded 
what  they  deemed  to  be  fair  and  reasonable  compensation  under 
all  the  circumstances  of  the  case,  a  Court  ought  not,  unless  under 
very  exceptional  circumstances,  to  disturb  their  verdict.  But  look- 
ing to  the  figures  in  the  present  case,  it  seems  to  us  that  the  jury 
must  have  omitted  to  take  into  account  some  of  the  heads  of 
damage  which  were  properly  involved  in  the  plaintiff's  claim. 

The  plaintiff  was  a  man  of  middle  age  and  of  robust  health. 
His  health  has  been  irreparably  injured  to  such  a  degree  as  to  render 
life  a  burden  and  source  of  the  utmost  misery.  He  has  undergone  a 
great  amount  of  pain  and  suffering.  The  probability  is  that  he  will 
never  recover.  His  condition  is  at  once  helpless  and  hopeless. 
The  expenses  incurred  by  reason  of  the  accident  have  already 
amounted  to  lOOOL  Medical  attendance  still  is  and  is  likely  to  be 
for  a  long  time  necessary.  He  was  making  an  income  of  5000Z. 
a  year,  the  amount  of  which  has  been  positively  lost  for  sixteen 
months  between  the  accident  and  the  trial,  through  his  total 
incapacity  to  attend  to  his  professional  business.  The  positive 
pecuniary  loss  thus  sustained  all  but  swallows  up  the  greater  por- 
tion of  the  damages  awarded  by  the  jury.  It  leaves  little  or 
nothing  for  health  permanently  destroyed  and  income  perma- 
nently lost.  We  are  therefore  led  to  the  conclusion,  not  only  that 
the  damages  are  inadequate  but,  that  the  jury  must  have  omitted 
to  take  into  consideration  some  of  the  elements  of  damage  which 
ought  to  have  been  taken  into  account. 

It  was  contended,  on  behalf  of  the  defendants,  that  even  assum- 
ing the  damages  to  be  inadequate,  the  Court  ought  not  on  that 
account  to  set  aside  the  verdict  and  direct  a  new  trial,  inadequacy 
of  damages  not  being  a  sufficient  ground  for  granting  a  new  trial 
in  an  action  of  tort,  unless  there  has  been  misdirection,  or  miscon- 
duct in  the  jury,  or  miscalculation,  in  support  of  which  position 
the  cases  of  Kendall  v,  Hayward,  and  Forsdike  v.  Stone  were  relied 


DETZUR   V.    B.    STROH    BREWING    CO.  469 

on.  But  in  both  those  cases  the  action  was  for  slander,  in  which, 
as  was  observed  by  the  judges  in  the  latter  case,  the  jury  may 
consider,  not  only  what  the  plaintiff  ought  to  receive,  but  what  the 
defendant  ought  to  pay.  We  think  the  rule  contended  for  has  no 
application  in  a  case  of  personal  injury,  and  that  it  is  perfectly 
competent  to  us  if  we  think  the  damages  unreasonably  small  to 
order  a  new  trial  at  the  instance  of  the  plaintiff.  There  can  be  no 
doubt  of  the  power  of  the  Court  to  grant  a  new  trial  where  in  such  an 
action  the  damages  are  excessive.  There  can  be  no  reason  why  the 
same  principle  should  not  apply  where  they  are  insufficient  to 
meet  the  justice  of  the  case. 

The  rule  must  therefore  be  made  absolute  for  a  new  trial. 

Rule  absolute} 


DETZUR  V.   B.   STROH  BREWING   CO. 

Supreme  Court  of  Michigan.     1899. 
[Reported  119  Michigan,  282.] 

Hooker,  J,^  The  plaintiff  was  injured  by  a  piece  of  glass,  which 
fell  from  a  window  of  the  defendant's  building,  cutting  her  arm 
severely,  and  permanently  impairing  its  use,  according  to  some  of 
the  testimony  in  the  case.  There  is  testimony  upon  the  part  of  the 
plaintiff  tending  to  show  that  a  round  window  in  the  upper  story 
was  broken  for  some  days  or  weeks  before  the  accident,  and  that  it 
was  a  piece  of  glass  from  this  window  which  injured  the  plaintiff. 
The  defendant  offered  testimony  tending  to  show  that  there  was 
no  broken  window  in  the  building  on  the  day  before  the  accident, 
and  that  the  glass  causing  the  injury  came  from  a  square  window, 
in  a  lower  story,  and  its  fall  was  caused  by  a  high  wind  blowing  at 
the  time.  The  theory  of  the  only  count  relied  upon  is  that  the 
defendant  created  and  maintained  a  nuisance,  in  an  insecurely 
fastened  and  broken  window  sash  and  glass,  whereby  the  plaintiff 
was  injured.  A  verdict  of  $10,000  was  rendered  in  behalf  of  the 
plaintiff.     A  motion  being  made  for  a  new  trial,  the  court  denied 

1  See  Falvey  v.  Stanford,  L.  R.  10  Q.  B.  54;  Simmons  v.  Fish,  210  Mass. 
563,  97  N.  E.  102,  Ann.  Cas.  1912,  D,  p.  588;  McDonald  v.  Walter,  40  N.  Y. 
551;  Benton  v.  Collins,  125  N.  C.  83,  34  S.  E.  242,  47  L.  R.  A.  33;  Toledo 
Railways  &  Light  Co.  v.  Mason,  81  Oh.  St.  463,  91  N.  E.  292,  28  L.  R.  A. 
(n.  s.),  130.  See  also  Sundgren  v.  Stevens,  86  Kan.  154,  119  Pac.  322,  39 
L.  R.  A.  (n.  s.),  487.  —  Ed. 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


470  MOTION   FOR   NEW   TRIAL 

the  same,  upon  condition  that  the  plaintiff  remit  the  sum  of  $6,500 
from  the  verdict,  which  was  done.  The  defendant  has  brought 
error.  .  .  . 

A  motion  for  a  new  trial  was  made  upon  the  following  grounds: 

1.  The  damages  are  excessive. 

2.  The  damages  are  so  excessive  as  to  evince  passion,  prejudice, 
partiality,  or  corruption  of  the  jury. 

3.  The  verdict  is  against  the  weight  of  evidence. 

The  court  found  that  the  damages  were  excessive;  that  they 
were  not  so  excessive  as  to  evince  passion,  prejudice,  or  corruption, 
and  that  they  do  not  exist;  that  the  jurors  were  so  moved  by  sym- 
pathy for  the  plaintiff,  and  by  their  common  knowledge  of  the 
financial  ability  of  the  defendant,  and  their  belief  of  large  amounts 
expended  by  the  defendant  for  medical  expert  evidence,  as  to  have 
awarded  a  larger  amount  than  they  otherwise  would  have  done, 
and  to  that  extent  partiality  is  found;  that  the  verdict  is  not 
contrary  to,  or  against  the  weight  of,  the  evidence.  An  order  was 
then  made  ordering  a  new  trial,  unless  $6,500  should  be  remitted 
from  the  verdict.  Error  is  assigned  upon  this  order.  Counsel 
argue  that  $3,500  is  excessive  damage  for  a  stiff  arm;  but  we  can- 
not say  that  it  is  so  clearly  excessive  as  to  justify  our  interference 
upon  that  ground.  We  are  also  of  the  opinion  that  making  a  new 
trial  dependent  upon  a  refusal  to  remit  a  portion  of  the  verdict  in 
cases  of  this  kind  is  a  well-settled  practice  in  this  State,  where,  as 
in  this  case,  the  amount  of  unliquidated  damage  is  the  only  question 
involved.  It  has  always  been  considered  lawful  for  the  trial  judge 
in  such  a  case  to  set  aside  a  verdict  as  excessive;  and  it  has  been  a 
common  practice  to  grant  a  portion  of  the  relief  asked  by  requiring 
a  remission  of  a  portion  of  the  verdict  as  a  condition  upon  which  the 
new  trial  will  be  denied.  This  has  always  been  a  matter  of  dis- 
cretion, and,  where  it  is  not  clearly  erroneous,  the  action  of  the 
trial  court  should  not  be  disturbed. 

Several  other  questions  are  raised,  but  our  investigation  of  them 
leads  to  the  conviction  that  they  do  not  furnish  a  ground  for 
reversal  of  the  case.  We  think  it  unnecessary  to  discuss  them. 
The  jury  found  a  cause  of  action,  and  that  left  merely  the  question 
of  the  amount  of  damages  to  be  awarded.  These  involved  pain 
and  suffering,  and  prospective  as  well  as  past  deprivation  of  the 
use  of  the  arm.  Such  damages  are  not  altogether  a  matter  of 
mathematical  computation,  but  they  are  determined  by  the  con- 
census of  opinion  of  the  jury,  acting  under  the  direction  of  the 


TROW    V.    VILLAGE    OF    WHITE    BEAR  471 

judge.     The  question  of  new  trial  was  within  the  discretion  of  the 
court. 

The  judgment  of  the  circuit  court  is  affirmed.^ 

The  other  Justices  concurred. 


TROW  V.   VILLAGE  OF  WHITE  BEAR. 
Supreme  Court  of  Minnesota.     1899. 

[Reported  78  Minnesota,  432.] 

Brown,  J.  This  action  is  one  to  recover  damages  for  injuries  to 
plaintiff's  person,  caused,  as  is  alleged  in  the  complaint,  by  a  defec- 
tive sidewalk  located  within  the  corporation  limits  of  defendant 
village.  A  verdict  was  returned  in  the  court  below  in  plaintiff's 
favor  for  the  sum  of  $1,400.  The  defendant  moved  that  court  for  a 
new  trial  on  the  grounds:  (1)  Excessive  damages,  appearing  to 
have  been  given  under  the  influence  of  passion  and  prejudice;  and 
(2)  that  the  verdict  is  not  justified  b}^  the  evidence,  and  is  contrary 
to  law.  The  court  made  an  order  granting  the  motion  unless 
plaintiff  should  consent  to  remit  from  the  verdict  all  in  excess  of 
S800,  but  denying  it  in  case  she  should  so  remit.  Plaintiff  filed  a 
proper  remittitur,  judgment  was  thereupon  entered  in  her  favor  for 
$800  and  costs,  and  defendant  appeals. 

1.  The  first  question  presented  by  appellant  is  whether  a  new 
trial  should  not  be  granted,  as  a  matter  of  right,  when  it  is  deter- 
mined by  the  trial  court  that  excessive  damages  have  been  awarded 
by  a  jury  under  the  influence  of  passion  and  prejudice. 

The  position  of  appellant's  counsel  is  that,  where  it  is  determined 
by  the  trial  court  that  excessive  damages  have  been  so  awarded 
by  a  jurj',  a  new  trial  should  be  granted,  and  the  error  of  the  jury 
cannot  be  corrected  by  a  reduction  of  the  verdict.  Taken  from  a 
statutory  point  of  view,  there  is,  in  the  opinion  of  the  writer,  much 
logic  and  good  sense  in  counsel's  position.  Our  statutes  pro\'ide 
for  granting  a  new  trial  in  cases  where  excessive  damages  have  been 
awarded  by  a  jury  acting  under  the  influence  of  passion  and  prej- 

'  See  a  collection  of  cases  in  accord  with  the  principal  case  in  39  L.  R.  A. 
(n.  s.),  1064.     But  compare  Watts  v.  Watts,  [1905]  A.  C.  115. 

Similarly  the  defendant  may  prevent  a  new  trial  on  the  ground  that  the 
verdict  is  too  small,  by  consenting  to  the  entry  of  a  judgment  for  the  proper 
amount,  in  cases  where  the  proper  amount  can  be  fi.xed  by  computation. 
Carr  v.  Miner,  42  111.  179.  —  Ed. 


472  MOTION    FOR   NEW   TRIAL 

udice,  and  contain  no  exception  or  saving  clause  under  which  the 
trial  court  may  correct  the  erroneous  conduct  of  the  jury  by  reduc- 
ing the  verdict.  A  strict  following  of  the  statutes  would  there- 
fore require  a  new  trial  whenever  such  a  verdict  is  returned.  But 
the  practice  of  correcting  the  error  of  the  jury  by  reducing  the 
damages  to  what  the  trial  court  deems  reasonable  and  fair,  not  only 
in  cases  where  it  is  found  that  the  jury  was  actuated  by  motives 
other  than  passion  and  prejudice,  but  in  cases  where  there  was  no 
other  apparent  cause,  is  too  firmly  rooted  in  this  state  to  be  now 
departed  from. 

Of  course,  in  cases  where  there  is  such  a  degree  of  passion  and 
prejudice  as  to  make  it  clear  to  the  court  that  it  permeated  the 
entire  case,  and  influenced  the  jury  upon  questions  other  than 
damages,  such  misconduct  on  the  part  of  the  jury  (for  it  amounts  to 
misconduct)  will  not  be  overlooked,  or  any  attempt  made  to  cor- 
rect it  by  a  reduction  of  damages.  In  such  cases  an  unconchtional 
new  trial  will  always  be  granted.  But  in  cases  where  the  trial 
court,  in  the  exercise  of  a  sound  discretion,  determines  that  the 
passion  and  prejudice  did  not  influence  the  jury  as  to  other  ques- 
tions in  the  case,  and  that  the  verdict  is  right,  except  that  it  is 
excessive,  the  error  of  the  jury  may  be  corrected  by  a  reduction  of 
the  amount  of  the  verdict  to  such  sum  as  the  court  deems  proper. 
We  are  not  able  to  say,  from  the  record  before  us,  that  the  trial 
court  erred  in  reducing  the  verdict  in  this  case,  and  must  sustain 
the  order. 

2.  We  have  examined  the  evidence  with  care  and  patience,  and 
conclude  that  the  verdict,  as  to  the  other  questions,  approved  as  it 
has  been  by  the  trial  court,  cannot  be  disturbed. 

Judgment  affirmed} 

1  Compare  Tunnel  Mining;  &  Leasing  Co.  v.  Cooper,  50  Colo.  390,  115  Pac. 
901,  39  L.  R.  A.  (n.  s.),  1064,  Ann.  Cas.  1912,  C,  p.  504;  Lauth  v.  Chicago 
Union  Traction  Co.,  244  111.  244,  91  N.  E.  431;  McNamara  v.  McNamara,  108 
Wis.  613,  84  N.  W.  901. 

An  error  of  law  affecting  the  entire  verdict  cannot  be  cured  by  a  remittitur. 
Floody  V.  Great  Northern  Ry.  Co.,  102  Minn.  81,  112  N.  W.  875,  1081,  13 
L.  R.  A.  (n.  s.),  1196. —  Ed. 


GILA  VALLEY,  GLOBE  AND  NORTHERN  RAILWAY  CO.  V.  HALL       473 

GILA  VALLEY,   GLOBE  AND   NORTHERN   RAILWAY 
COMPANY   V.   HALL. 

Supreme  Court  of  the  United  States.     1914. 
[Reported  232  United  States,  94.] 

Pitney,  J.^  This  is  a  review  of  a  judgment  of  the  Supreme  Court 
of  Arizona,  rendered  prior  to  Statehood,  affirming  the  judgment 
of  one  of  the  territorial  district  courts,  in  an  action  brought  by  Hall 
against  the  Railway  Company  to  recover  damages  for  personal 
injuries.  .  .  . 

Upon  the  trial  the  jury  returned  a  verdict  in  his  favor  for  $10,000. 
The  Company  moved  for  a  new  trial,  and,  pending  this  motion, 
Hall  voluntarily  remitted  $5,000  from  the  amount  of  the  verdict. 
Thereafter  the  trial  court  denied  the  motion,  and  entered  judgment 
in  Hall's  favor  for  $5,000  and  costs.  From  this  judgment  and 
from  the  order  denying  the  motion  for  new  trial  the  Company 
appealed  to  the  territorial  Supreme  Court,  which  affirmed  the 
judgment,  as  already  stated.      13  Arizona,  270. 

This  writ  of  error  is  sued  out  by  the  Railway  Company  and  the 
sureties  upon  the  supersedeas  bond  that  was  given  for  the  purposes 
of  the  appeal  to  the  territorial  Supreme  Court.  A  reversal  of  the 
judgment  is  sought  because  of  alleged  trial  errors.  .  .  . 

It  is  insisted  that  there  was  error  in  entering  judgment  in  favor 
of  the  plaintiff  for  $5,000,  after  the  residue  of  the  verdict  of  $10,000 
was  remitted  pending  the  motion  for  new  trial.  The  argument  is 
that  the  voluntary  remission  of  so  large  an  amount  by  the  plaintiff 
was  an  admission  that  the  verdict  was  excessive ;  that  an  excessive 
verdict  may  not  be  cured  by  a  remitter  where  the  amount  of  the 
damages  cannot  be  measured  by  any  fixed  standard  or  determined 
with  certainty;  that  a  verdict  so  excessive  is  conclusive  evidence 
that  it  was  the  product  of  prejudice  on  the  part  of  the  jury,  and 
that  this  vice  goes  to  the  entire  verdict,  and  not  merely  to  the 
excess.  The  practice,  however,  is  recognized  by  the  Civil  Code 
(Ariz.  Rev.  Stat.  1901,  pars.  1450  and  1451),  which  permit  any 
party  in  whose  favor  a  verdict  or  judgment  has  been  rendered 
to  remit  any  part  thereof,  after  which  execution  shall  issue  for  the 
balance  only  of  such  judgment.  In  Northern  Pacific  R.  R.  Co.  v. 
Herbert,  116  U.  S.  642,  646,  an  action  in  a  territorial  court  to  re- 
cover damages  for  personal  injuries  that  necessitated  the  amputa- 
tion of  a  leg,  there  was  a  verdict  in  favor  of  the  plaintiff  for  $25,000, 

'  A  part  of  the  opiuion  is  omitted.  —  Ed. 


474  MOTION    FOR   NEW    TRIAL 

a  motion  for  a  new  trial  on  various  grounds,  among  others  that  the 
damages  were  excessive,  and  the  court  ordered  that  a  new  trial 
be  granted  unless  plaintiff  remitted  $15,000  of  the  verdict,  and,  in 
case  he  did  so,  that  the  motion  should  be  denied.  He  remitted 
the  amount,  and  judgment  was  entered  in  his  favor  for  the  balance, 
which  the  Supreme  Court  of  the  Territory  affirmed.  This  court 
held  that  the  matter  was  within  the  discretion  of  the  court;  and 
this  even  without  the  sanction  of  a  statute.  The  constitutional 
question  involved  was  reexamined  in  Arkansas  Cattle  Co.  v.  Mann, 
130  U.  S.  69,  73,  and  the  decision  in  the  Herbert  Case  was  adhered 
to,  it  being  held  that  the  practice  under  criticism  did  not  in  any 
just  sense  impair  the  right  of  trial  by  jury. 

In  Southern  Pacific  Co.  v.  Tomlinson,  4  Arizona,  126,  132,  and 
in  Southern  Pacific  Co.  v.  Fitchett,  9  Arizona,  128,  134,  the  general 
practice  was  sustained  by  the  territorial  Supreme  Court.  In  the 
former  case,  however,  it  was  said  (4  Arizona,  132)  that  "  if  it  is 
apparent  to  the  trial  court  that  the  verdict  was  the  result  of 
passion  or  prejudice,  a  remittitur  should  not  be  allowed,  but  the 
verdict  should  be  set  aside.  In  passing  upon  this  question  the 
court  should  not  look  alone  to  the  amount  of  the  damages  awarded, 
but  to  the  whole  case."  In  the  Fitchett  Case,  it  appearing  that  the 
trial  court  was  of  the  opinion  that  more  than  half  of  the  damages 
awarded  for  the  appellee's  injured  feelings  were  excessive,  the 
Supreme  Court  held  that  evidently  the  verdict  was  not  the  result 
of  cool  and  dispassionate  consideration,  and  that  the  question  of 
the  proper  sum  to  be  awarded  ought  not  to  have  been  determined 
by  the  trial  court,  but  should  have  been  submitted  to  the  deter- 
mination of  another  jury.  In  the  present  case  (13  Arizona,  276) 
the  majority  of  the  court  declared  they  were  not  prepared  to  adhere 
to  the  views  expressed  in  the  Fitchett  Case:  that  while  there  is 
authority  for  the  position  that  in  no  case  of  unliquidated  damages 
should  the  court  permit  a  remission  where  the  verdict  is  excessive, 
without  the  consent  of  the  defendant,  the  great  weight  of  authority 
supports  the  practice;  citing  the  decisions  of  this  court  already 
referred  to;  and  declaring  that  while,  if  it  appears  that  the  verdict 
is  tainted  with  prejudice  or  passion,  and  does  not  represent  the 
dispassionate  judgment  of  the  jury  upon  the  question  of  the  right 
of  the  plaintiff  to  recover,  a  new  trial  should  be  granted,  yet  the 
trial  court  is  in  a  better  position  to  determine  this  than  the  appel- 
late court,  so  that  its  determination  should  ordinarily  be  accepted. 
We  see  no  ground  for  disturbing  this  decision. 

Judgment  affirmed. 


ATCHISON,    T.    &    S.    F.    RY.    CO.    V.    COGSWELL  475 

ATCHISON,   T.   &   S.   F.   RY.   CO.   v.   COGSWELL. 
Supreme  Court  of  Oklahoma.     1909. 

[Reported  23  Oklahoma,  181.] 

This  action  was  brought  by  Jud  Cogswell,  plaintiff,  against  the 
Atchison,  Topeka  &  Santa  Fe  Railway  Company,  defendant,  in 
the  United  States  District  Court  for  the  Northern  District  of  the 
Indian  Territory  at  Bartlesville,  for  damages  sustained  on  account 
of  personal  injuries  by  him  received  at  defendant's  station  plat- 
form in  the  town  of  Bartlesville,  caused  by  the  alleged  negligence 
of  the  railway  company.  .  .  . 

Defendant  in  its  answer  specifically  denies  all  the  allegations  of 
the  petition.  The  case  was  tried  to  a  jury,  who  returned  a  verdict 
for  plaintiff,  and  assessed  his  damages  at  $1,600.  On  motion  for 
a  new  trial  the  court  required  the  plaintiff  to  elect  to  accept  a 
judgment  for  $1,000  in  lieu  of  the  amount  fixed  by  the  jury,  which 
plaintiff  declined  to  do.  The  court  then  remitted  $600  upon  his 
own  motion  from  the  amount  fixed  by  the  jury,  and  rendered  judg- 
ment in  favor  of  plaintiff  for  $1,000.  From  this  judgment  defend- 
ant appealed  to  the  United  States  Court  of  Appeals  of  the  Indian 
Territory,  and  plaintiff  has  filed  his  cross-appeal,  complaining  of 
the  court's  action  in  reducing  the  judgment.  The  case  is  now  be- 
fore this  court  for  final  disposition  under  the  provisions  of  the 
enabling  act  (Act  June  16,  1906,  c.  3335,  34  Stat.  267). 

Hayes,  J.^  .  .  .  In  its  motion  for  a  new  trial,  some  of  the  grounds 
assigned  by  plaintiff  in  error  were:  "  Because  said  verdict  is  for 
excessive  damages  appearing  to  have  been  given  under  the  influence 
of  passion  and  prejudice  ";  "  because  the  verdict  is  not  sustained 
by  sufficient  evidence  ";  and  "  because  it  is  contrary  to  the  evi- 
dence." The  court  upon  hearing  the  motion  required  the  plaintiff 
to  accept  a  judgment  for  $1,000  in  lieu  of  the  amount  fixed  by  the 
jury,  which  plaintiff  declined  to  do.  The  court  thereupon  remitted 
$600  from  the  amount  fixed  by  the  jury,  overruled  plaintiff  in 
error's  motion  for  a  new  trial,  and  rendered  judgment  for  the  sum 
of  $1,000.  This  act  of  the  court  is  complained  of  by  plaintiff  in 
error  in  its  petition  and  by  defendant  in  error  in  his  cross-appeal, 
and  was  error  as  to  both.  The  Code  in  force  in  the  Indian  Terri- 
tory at  the  time  of  the  trial  in  this  case  provided  that  the  court 

*  The  statement  of  facts  is  abridged  and  a  part  of  the  opinion  is  omitted. 
—  Ed. 


476  MOTION    FOR   NEW    TRIAL 

may  vacate  and  set  aside  the  verdict  of  a  jury  and  grant  a  new  trial 
upon  several  grounds,  among  which  are  the  following:  "  Excessive 
damages  appearing  to  have  been  given  under  the  influence  of 
passion  or  prejudice  ";  "  the  vercUct  or  decision  is  not  sustained 
by  sufficient  evidence,  or  is  contrary  to  law."  Section  5151, 
Mansfield's  Dig.  Ark.  As  was  said  by  the  court  in  Kennon  v. 
Gilmer,  131  U.  S.  22,  9  Sup.  Ct.  696,  33  L.  Ed.  110,  under  this 
statute,  as  at  common  law,  the  court  upon  the  hearing  of  a  motion 
for  a  new  trial  may  in  the  exercise  of  its  judicial  discretion  grant  or 
deny  a  motion  for  a  new  trial,  or  make  order  that  a  new  trial  be 
granted  unless  the  plaintiff  elects  to  remit  the  excessive  part  of  the 
verdict,  and,  if  he  does  remit,  that  judgment  be  entered  for  the 
amount  of  the  verdict  less  the  amount  remitted.  See,  also.  Little 
Rock  &  Ft.  Smith  Ry.  Co.  v.  Barker  ct  al,  39  Ark.  491;  Northern 
Pacific  Ry.  Co.  v.  Herbert,  116  U.  S.  642,  6  Sup.  Ct.  590,  29  L.  Ed. 
755;  Railway  Co.  v.  Turley,  1  Ind.  Ter.  283,  37  S.  W.  52;  Blunt  v. 
Little,  3  Mason,  102,  Fed.  Cas.  No.  1578.  But  the  trial  court  is 
without  authority  to  reduce  a  verchct  and  render  judgment  for  the 
reduced  amount  without  the  consent  and  over  the  objection  of  the 
plaintiff.  Massadillo  v.  Railway  Co.,  89  Tenn.  661,  15  S.  W.  445; 
Brown  v.  McLeish  et  al,  71  Iowa,  381,  32  N.  W.  385;  Noel  v. 
Dubuque,  Bellevue  &  Mississippi  Ry.  Co.,  44  Iowa,  293;  Young 
V.  Cowden,  98  Tenn.  577,  40  S.  W.  1088.  It  is  therefore  apparent 
that  the  action  of  the  court  in  rendering  judgment  for  the  reduced 
amount  was  error  as  to  the  plaintiff,  for,  when  he  refused  to  remit, 
the  court  was  only  authorized  to  grant  a  new  trial. 

Plaintiff  in  error  was  also  prejudiced  by  the  action  of  the  court; 
for,  when  the  court  decided  that  the  verdict  of  the  jury  was  exces- 
sive, and  should  be  reduced  to  the  amount  specified  by  him  in  his 
order,  it  was  entitled  to  have  a  new  trial  if  defendant  in  error 
refused  to  remit  the  amount  required  by  the  court,  and,  while  in 
one  sense,  it  may  be  said  that  this  act  of  the  court  is  in  favor  of 
plaintiff  in  error  in  that  its  result  is  to  reduce  the  amount  of  the 
judgment  against  it,  it  is  not,  however,  the  order  plaintiff  in  error 
was  entitled  to.  .  .  . 

In  the  case  at  bar,  when  the  court  entered  judgment  for  the 
lesser  sum,  if  plaintiff  in  error  had  not  appealed,  defendant  in 
error  had  the  right  of  appeal,  and  has  availed  himself  of  it  by  his 
cross-appeal  herein,  and  plaintiff  in  error  would  have  been  com- 
pelled to  defend  against  defendant  in  error's  appeal  in  order  to 
prevent  being  held  for  the  larger  sum  on  appeal,  for  which  plaintiff 
now  contends  in  his  cross-appeal. 


SAN   DIEGO    LAND    AND    TOWN    CO.    V.    NEALE  477 

We  have  examined  carefully  the  evidence  in  this  case  and  cannot 
say  that  the  trial  court  erred  in  his  conclusion  that  the  verdict  was 
excessive.  The  cause  will  be  reversed  and  remanded  with  direc- 
tions to  grant  a  new  trial,  and  that  the  cost  in  this  court  be  taxed 
equally  against  the  parties.^ 

All  the  Justices  concur. 


SAN   DIEGO   LAND  AND   TOWN   COMPANY  v. 
NEALE  et  al. 

Supreme  Court  of  California.     1888. 

[Reported  78  California,  63.] 

Hayne,  C?  Proceeding  to  condemn  land  for  the  purposes  of  a 
reservoir.  It  appears  from  the  findings  that  the  use  was  a  public 
use;  that  the  value  of  the  land  to  be  taken  was  $280  per  acre, 
amounting  in  all  to  .$98,126;  that  the  damage  to  the  remainder  of 
the  tract  amounted  to  $1,805,  and  that  the  value  of  the  improve- 
ment was  $300.  The  plaintiff  moved  for  a  new  trial  as  to  issue 
concerning  the  value  of  the  land  sought  to  be  taken,  but  as  to  no 
other  issue,  and  appeals  from  the  order  denying  the  motion. 

The  defendants  make  a  preliminary  objection  that  a  party  can- 
not move  for  a  new  trial  as  to  a  part  of  the  issues.  So  far  as  we  are 
advised,  this  precise  question  has  not  been  decided  in  this  state. 
But  upon  principle,  and  accorcUng  to  the  analogies  of  existing  rules, 
we  think  that  the  objection  is  not  well  taken.  There  is  nothing  in 
the  code  either  ex]Dressly  forbidding  or  expressly  authorizing  such  a 
course.  The  implication  from  the  language,  however,  tends  to 
sanction  it.  The  definition  of  a  new  trial  is  as  follows:  "  A  new 
trial  is  a  re-examination  of  an  issue  of  fact  in  the  same  court  after 
a  trial  and  decision  by  a  jury  or  court  or  by  referees."  Code  Civ. 
Proc,  sec.  656.  Now,  as  the  law-makers  cannot  be  supposed  to 
have  thought  that  the  majority  of  cases  involved  only  one  issue  of 
fact,  there  is  perhaps  some  implication  that  they  intended  that 
there  might  be  such  a  thing  as  a  new  trial  of  a  single  issue,  whether 
there  were  other  issues  or  not.      There  is  at  least  no  implication 

»  See  Kennon  v.  Gilmer,  131  U.  S.  22,  33  L.  ed.  110,  9  S.  Ct.  696;  Brown  v. 
McLeish,  71  la.  381,  32  N.  W.  38.5;  Isley  v.  Bridge  Co.,  143  N.  C.  51,  55  S.  E. 
416;  Rodgers  v.  Bailey,  68  W.  Va.  186,  69  S.  E.  698.  But  see  Beach  v.  Bird  & 
Wells  Lumber  Co.,  135  Wis.  550,  116  N.  \\\  245.  —  Ed. 

*  Only  a  part  of  the  opinion  of  Hayne,  C,  is  given.  —  Ed. 


478  MOTION    FOR   NEW   TRIAL 

to  the  contrary.  The  analogies  of  other  provisions  and  previous 
decisions  support  the  view  that  there  may  be  a  new  trial  as  to 
a  part  of  the  issues.  Thus  a  party  may  appeal  from  a  part  of  a 
judgment  or  order.  See  cases  collected  in  note  4  to  section  185  of 
Hayne  on  New  Trial  and  Appeal.  So  it  has  been  held  that  where 
a  party  serves  his  notice  of  intention  to  move  for  a  new  trial  upon 
only  one  of  two  defendants,  it  is  proper  to  grant  a  new  trial  as  to 
the  one  served,  but  not  as  to  the  other.  Wittenbrock  v.  Bellmer, 
57  Cal.  12.  And  it  has  always  been  the  practice  (except  in  cases 
of  a  peculiar  character)  for  any  party  who  is  dissatisfied  with  the 
result  to  move  for  a  new  trial  as  to  himself,  leaving  the  judgment  to 
stand  as  to  the  other  parties.  And  in  one  sense  such  a  motion  is  a 
motion  for  new  trial  as  to  a  part  of  the  issues.  So  it  is  settled  that, 
upon  an  appeal  from  the  judgment,  the  appellate  court  may  order 
a  new  trial  as  to  a  part  of  the  issues,  leaving  the  decision  in  force  as 
to  the  remainder.  Marziou  v.  Pioche,  10  Cal.  546;  Jungerman 
V.  Bovee,  19  Cal.  364;  Kinsey  v.  Green,  51  Cal.  379;  LeClert  v. 
Oullahan,  52  Cal.  253;  Watson  v.  Cornell,  52  Cal.  91;  Swift 
V.  Canavan,  52  Cal.  419;  Billings  v.  Everett,  52  Cal.  661;  Phipps  v. 
Harlan,  53  Cal.  87.  And  if  this  can  be  done,  it  is  difficult  to  assign 
a  satisfactory  reason  why  the  party  could  not  ask  the  trial  court 
for  the  same  relief  in  the  first  instance.  The  cases  which  hold  that 
a  motion  for  new  trial  is  premature  if  made  before  all  the  material 
issues  are  disposed  of  are  not  in  conflict  with  our  conclusion,  for 
in  the  case  before  us  all  the  material  issues  were  disposed  of  before 
the  motion  was  made.  We  see  no  inconvenience  that  can  result 
from  the  practice.  The  time  to  move  as  to  the  remaining  issues 
would  not  be  extended  by  a  motion  as  to  a  part;  and  the  party 
would  lose  his  right  to  attack  the  findings  as  to  the  remaining  issues, 
unless  the  time  should  be  extended,  which  could  only  be  for  a  short 
period  without  the  consent  of  the  parties.  And  this  being  so,  the 
result  would  simply  be  the  elimination  of  a  part  of  the  controversy, 
which  is  not  in  itself  undesirable.  The  question  arose  in  Nevada 
upon  a  similar  statute,  and  the  court,  after  an  elaborate  examina- 
tion of  the  subject,  held  that  a  motion  for  new  trial  as  to  a  part  of 
the  issues  was  permissible.  Lake  v.  Bender,  18  Nev.  361.  We  are 
satisfied  with  the  rule  laid  down  in  that  case.  It  is  possible  that 
there  may  be  cases  where  the  issues  are  so  inseparably  blended  as 
to  render  a  separation  impracticable.  We  express  no  opinion  as 
to  that.  But  it  is  clear  that  the  present  case  is  not  of  that  char- 
acter. The  preliminary  objection  should  therefore  be  over- 
ruled. .  .  . 


PARKER    V.    GODIN  479 

The  Court.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  as  to  all  the  issues,  except  the  issue  as  to  the  value 
of  the  land  taken,  is  affirmed;  the  judgment  as  to  that  issue,  and 
the  order  denying  a  new  trial,  are  reversed,  and  the  cause  remanded 
for  a  new  trial  of  said  issue,  the  appellant  to  recover  its  costs  of 
appeal.^ 

PARKER  et  al.   v.   GODIN. 
King's  Bench.     1729. 
[Reported  2  Strange,  813.] 

Satur  a  bankrupt  at  the  time  of  his  going  off  left  some  plate 
with  his  wife,  who  in  order  to  raise  money  upon  it  delivered  to  her 
servant,  who  went  along  \vith  the  defendant  to  the  door  of  Mr. 
Woodward  the  banker,  and  there  the  defendant  took  the  plate  into 
his  hands  and  went  into  the  shop  and  pawned  it  in  his  own  name, 
gave  his  own  note  to  repay  the  money,  and  immediately  upon 
receipt  of  it  went  back  to  the  bankrupt's  wife,  and  delivered  the 
money  to  her.  And  in  trover  for  the  plate  the  jury  (considering 
the  defendant  acted  only  as  a  friend,  and  that  it  would  be  hard  to 
punish  him)  found  a  verdict  for  the  defendant.  But  upon  applica- 
tion to  the  court  a  new  trial  was  granted,  upon  the  foot  of  its  being 
an  actual  conversion  in  the  defendant,  notwithstanding  he  did  not 
apply  the  money  to  his  own  use.  And  upon  a  second  trial  the 
plaintiff  obtained  a  verdict  for  the  value  of  the  plate. 

A^.  B.  A  difficulty  arose  upon  the  motion  for  a  new  trial,  which 
was  this.  There  were  other  things  besides  plate  in  the  declaration, 
and  as  to  them  the  verdict  pro  def  was  right ;  and  yet  a  new  trial 
must  be  granted  upon  the  whole.  But  on  consideration  the  court 
held  that  could  be  no  reason  to  refuse  a  new  trial,  for  if  the  merits 
as  to  those  other  things  were  with  defendant,  it  would  be  found  for 
him  as  to  them.  But  it  was  agreed  on  all  hands,  that  if  one  de- 
fendant be  acquitted,  and  another  found  guilty,  that  defendant 
can  have  no  new  trial.     Strange  pro  quer'. 

1  Simmons  v.  Fish,  210  Mass.  563,  97  N.  E.  102,  Ann.  Cas.  1912,  D,  p.  588, 
accord. 

As  to  the  constitutionahty  of  a  statute  providing  that  if  a  new  trial  is  granted 
on  the  ground  that  the  damages  are  excessive  or  inadequate,  the  new  trial  shall 
be  limited  to  the  question  of  the  amount  of  damages,  see  Opinion  of  the 
Justices,  207  Mass.  606,  94  N.  E.  846.  — Ed. 


480  MOTION    FOR   NEW   TRIAL 

In  the  Matter  of  the  Estate  of  EVERTS,  Deceased.     YOUNG 

MEN'S   CHRISTIAN   ASSOCIATION   OF  SANTA 

CRUZ  et  al.  v.   CHAPMAN. 

Supreme  Court  of  California.     1912. 

[Reported  163  California,  449.] 

Shaw,  J.^  Jeanette  L.  Everts  died  in  Santa  Cruz  County  on 
January  16,  1911.  On  January  19,  1911,  a  petition  for  the  probate 
of  a  writing,  dated  January  13,  1911,  purporting  to  be  her  will  was 
filed.  A  will  previously  executed  had  given  certain  legacies  to  the 
contestants  above  mentioned.  They  appeared  and  filed  a  contest 
of  the  will  of  January  13th.  The  grounds  of  contest  were:  1. 
That  the  decedent  was  of  unsound  mind  when  said  paper  was 
executed;  2.  That  it  was  procured  by  undue  influence;  and  3. 
That  it  was  procured  by  fraud.  The  issues  were  tried  by  a  jury 
which  found  that  the  decedent  was  of  unsound  mind  as  alleged, 
but  that  the  will  was  not  procured  by  fraud  or  undue  influence. 
Thereupon  the  proponents  and  contestants  moved,  separately,  for 
a  new  trial  of  the  issues  decided  against  them  respectively,  the  pro- 
ponents asking  a  new  trial  of  the  issue  as  to  insanity,  the  contes- 
tants for  a  new  trial  of  the  issues  as  to  undue  influence  and  fraud. 
The  court  granted  the  motion  of  the  proponents  and  ordered  a  new 
trial  of  the  issue  as  to  insanity  and,  denying  the  motion  of  contes- 
tants, refused  a  new  trial  of  the  questions  of  undue  influence  and 
fraud.  The  contestants  appeal  separately  from  each  order,  the 
appeal  from  the  order  relating  to  the  issue  of  insanity  being  case 
No.  6073,  and  that  from  the  order  upon  the  issues  of  undue  in- 
fluence and  fraud  being  case  No.  6072. 

The  granting  of  a  new  trial  for  want  of  evidence  to  support  the 
verdict  is  usually  a  matter  almost  entirely  within  the  discretion  of 
the  trial  court.  Such  order  will  not  be  reversed  unless  an  abuse 
of  discretion  appears.  Estate  of  Motz,  136  Cal.  560,  [69  Pac. 
294];  Bjorman  v.  Fort  B.  R.  Co.,  92  Cal.  501,  [28  Pac.  591].  The 
record  contains  no  substantial  evidence  that  the  testatrix  was  of 
unsound  mind  or  otherwise  incompetent  to  make  a  will  at  the  time 
of  the  execution  of  the  will  in  question.  The  court  very  properly 
ordered  a  new  trial  of  that  issue. 

It  is  within  the  power  of  the  trial  court,  where  there  is  more 
than  one  issue  of  fact  in  a  case  and  such  issues  are  distinct  and 

1  A  part  of  the  opinion  i.s  omitted.  —  Ed. 


BOND    V.    SPARK,    COLEMAN    AND    HUNT  481 

separable  in  their  nature,  to  order  a  new  trial  of  one  issue  and  refuse 
it  as  to  the  others.  San  Diego  L.  &  T.  Co.  v.  Neal,  78  Cal.  64, 
[3  L.  R.  A.  83,  20  Pac.  372];  Duff  v.  Duff,  101  Cal.  4,  [35  Pac.  437]; 
Mountain,  etc.,  Co.  v.  Bryan,  111  Cal.  38,  [43  Pac.  410].  These 
cases  declare  also  that  when  such  new  trial  is  granted,  it  opens  for 
examination  only  the  issue  upon  which  it  is  ordered,  that  the  deter- 
mination of  the  other  issues  remain  in  the  record  and  that  they 
cannot  be  retried.  The  only  remedy  of  the  moving  party  as  to 
those  issues  is  to  appeal  from  the  part  of  the  order  denying  the 
motion  for  a  new  trial  as  to  them.  This  the  appellants  have  done 
in  this  case.  If  we  affirm  that  part  of  the  order  denying  the  new 
trial  as  to  fraud  and  undue  influence,  the  findings  on  those  issues 
will  stand  unaffected  and  the  new  trial  to  follow  in  the  lower 
court  must  be  confined  to  the  question  of  the  unsoundness  of  mind 
of  the  decedent.  .  .  .  The  orders  appealed  from  are  affirmed.^ 

Angellotti,  J.,  and  Sloss,  J.,  concurred. 


BOND  V.    SPARK,   COLEMAN  and   HUNT. 
King's  Bench.     1700. 

[Reported  12  Modern,  275.] 

Assault  and  battery:  Issue  joined  on  son  assault  demesne;  two 
were  acquitted,  and  Sparks  found  guilty;  and  it  was  certified  by 
the  Judge  to  be  against  evidence;  and  motion  for  a  new  trial. 

But  the  Court  said,  a  new  trial  could  not  be  granted  except 
against  all.  Whereupon  the  attorney  for  the  defendants  consented 
for  the  two  defendants  who  were  acquitted,  that  they  should 
undergo  a  new  trial,  and  quit  the  costs  which  they  might  have 
from  the  plaintiff  on  their  acquittal;  and  Sparks  consented  to  pay 
the  plaintiff  costs. 

And  so  a  new  trial  was  granted  against  all.^ 

^  Lisbon  v.  Lyman,  49  X.  H.  553  (containing  an  exhaustive  opinion  by  Doe, 
C.  J.),  accord. 

Similarly,  when  the  issues  are  distinct,  the  trial  court  may  accept  the 
verdict  of  the  jury  on  those  issues  on  which  they  agree,  and  may  order  a  new 
trial  on  the  issues  on  which  they  disagree.     Marsh  v.  Isaacs,  45  L.  J.  C.  P.  505. 

It  is  within  the  discretion  of  the  trial  court  to  grant  a  new  trial  as  to  all  the 
issues.     Schmidt  v.  Posner,  130  la.  347,  106  N.  W.  760.  —  Ed. 

^  It  is  now  provided  by  the  Rules  of. the  Supreme  Court,  1883,  Order 
XXXIX,  rules  6  and  7  (as  amended  by  R.  S.  C.  (Aug.),  1913),  that  if  it  appears 
to  the  Court  of  Appeal  that  the  wrong  or  miscarriage  complained  of  "  affects 


482  MOTION    FOR   NEW   TRIAL 

SPARROW   V.   BROMAGE  et  al 

Supreme  Court  of  Errors  of  Connecticut.    1910. 

[Reported  83  Connecticut,  27.] 

Prentice,  J.^  The  plaintiff  in  his  complaint  charges  the  two 
defendants,  of  whom  Bromage  was  the  chief  of  police  of  the  town 
of  Enfield,  and  Moore  a  patrolman  under  him,  with  having  unlaw- 
fully imprisoned  him,  and  seeks  damages  from  them  therefor, 
A  verdict  of  $800  was  returned  against  both  defendants.  They 
thereupon  filed  a  motion  for  a  new  trial,  upon  the  grounds  that  the 
verdict  was  excessive  and  against  the  evidence.  The  motion  was 
granted  as  to  Moore,  and  the  verdict  against  him  set  aside.  It  was 
denied  as  to  Bromage,  and  judgment  entered  against  him  for  the 
amount  of  the  verdict.  Bromage  appeals,  alleging  that  the  court 
exceeded  its  power  in  taking  this  action.  The  sole  question  pre- 
sented relates  to  this  contention,  which  is  based  upon  the  proposi- 
tions that  the  court  in  rendering  judgment  departed  from  the 
verdict,  and  that  the  appellant  was  injured  by  the  course  pursued, 
since  it  could  not  be  said  that  any  jutlgment,  or  at  least  one  for  so 
large  an  amount,  would  have  been  rendered  against  him  as  a  sole 
defendant. 

Where  two  or  more  persons  unite  in  an  act  which  constitutes  a 
wrong  to  another,  intending  at  the  time  to  commit  it,  or  in  doing  it 
under  circumstances  which  fairly  charge  them  with  intending  the 
consequences  which  follow,  they  incur  a  joint  and  several  liability 
for  the  acts  of  each  and  all  of  the  joint  participants.  1  Cooley  on 
Torts  (3d  Ed.)  223;  Sheldon  v.  Kibbe,  3  Conn.  214,  216;  Ayer  v. 
Ashmead,  31  id.  447,  453;  Chapin  v.  Babcock,  67  id.  255,  256,  34 
Atl.  1039;  New  Haven  Trust  Co.  v.  Doherty,  74  Conn.  353,  357, 
50  Atl.  887.  There  is  no  apportionment  of  responsibility,  and  no 
right  of  contribution  or  indemnity  between  them.  1  Cooley  on 
Torts  (3d  Ed.)  226;  Bailey  v.  Bussing,  28  Conn.  455,  457;  Whit- 
aker  v.  Tatem,  48  id.  520,  521.  One  may  be  sued  severally,  or  any 
or  all  together. .  Sheldon  v.  Kibbe,  3  Conn.  214,  216.  Where 
more  than  one  is  sued,  a  verdict  or  judgment  may  be  rendered  for 

part  only  of  the  matter  in  controversy,  or  some  or  one  only  of  the  parties,  the 
Court  of  Appeal  may  give  final  judgment  as  to  part  thereof,  or  as  to  some  or  one 
only  of  the  parties,  and  direct  a  new  trial  as  to  the  other  part  only,  or  as  to  the 
other  party  or  parties  "  and  that  "  a  new  trial  may  be  ordered  on  any  question 
without  interfering  with  the  finding  or  decision  upon  any  other  question."  — 
Ed. 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 


SPARROW   V.    BROMAGE  483 

or  against  any  or  all.  Wyeman  v.  Deady,  79  Conn.  414,  417,  65 
Atl.  129.  Where  judgment  is  rendered  against  more  than  one,  it  is 
in  legal  effect  several  as  well  as  joint.  The  liability  continues  to  be 
a  several  one.  Brockett  v.  Fair  Haven  &  W.  R.  Co.,  73  Conn. 
428,  431,  47  Atl.  763;  Chapin  v.  Babcock,  67  Conn.  255,  256,  34 
Atl.  1039.  The  judgment  may  be  reversed  as  against  one  or  more 
and  sustained  as  against  others.     Wilford  v.  Grant,  Kirby,  114. 

These  well-settled  principles  as  to  the  nature  of  the  liability  of 
joint  tort  feasors,  and  the  legal  effect  accorded  to  legal  processes  to 
enforce  that  liability,  lead  logically  and  naturally  to  the  conclusion 
that,  when  a  verdict  is  returned  against  several,  the  court  may  deal 
with  it  in  its  further  proceedings  as  it  might  with  verdicts  returned 
against  each  in  separate  actions.  And  so  it  has  been  held,  al- 
though authority  to  the  contrary  may  be  found.  1  Black  on 
Judgments  (2d  Ed.)  §207;  Hayden  v.  Woods,  10  Neb.  306,  20 
N.  W.  345.  Cases  involving  contract  obligations,  or  concerning  in- 
dependent acts  of  negligence,  of  which  several  have  been  cited  in 
support  of  the  defendant's  proposition,  are  obviously  not  in  point. 
To  so  deal  with  the  verdict  and  set  it  aside  as  to  some,  and  not  as  to 
others,  is  not  to  depart  from  it  in  the  rendition  of  a  judgment  upon 
it  against  those  others.  Such  a  judgment  pursues  it  in  its  legal 
aspect  as  a  several  verdict  against  each. 

But  it  is  said  that  possible  harm  might  result  to  those  against 
whom  a  judgment  is  thus  rendered,  for  the  reason  that  they 
might  be  held  charged  with  responsibility  for  the  acts  shown  in 
evidence  of  those  who  are  allowed  to  escape  from  the  consequences 
of  the  finding  of  the  jury  upon  the  ground  that  a  case  had  not  been 
made  out  against  them.  A  situation  in  which  this  would  be  pos- 
sible would  not  be  the  usual  one.  It  could  only  arise  where  a 
failure  to  satisfactorily  establish  a  claimed  joint  action  by  tort 
feasors  was  a  factor  in  it.  In  such  case,  where  harm  of  the  kind 
suggested  might  be  reasonably  anticipated  if  a  verdict  was  per- 
mitted to  stand  against  only  a  part  of  the  defendants  unsuccessful 
before  the  jury,  it  is  to  be  presumed  that  the  court  would  exercise 
its  authority  to  prevent  the  injustice,  and  order  a  new  trial  as  to  all 
thus  threatened  vnth  injury.  See  Washington  Gas  Light  Co.  v. 
Lansden,  172  U.  S.  534,  556,  19  Sup.  Ct.  Rep.  296.  But  such  a 
situation  is  by  no  possibility  present  in  this  case.  Whether  the 
facts  as  claimed  to  have  been  established  by  the  plaintiff  or  by  the 
defendant  be  accepted,  it  is  beyond  question  that  if  the  defendant 
Moore  performed  any  act  of  detention  within  the  purview  of  the 
complaint  he  performed  it  under  the  authority  of  Bromage,  his 


484  MOTION    FOR   NEW   TRIAL 

superior,  and  in  direct  co-operation  with  the  latter.  They  were 
inevitably  joint  actors  in  so  far  as  Moore  acted  at  all  in  the  perpe- 
tration of  the  wrong  of  which  the  plaintiff  complains.  Such  being 
the  case,  no  harm  could  possibly  accrue  to  the  appellant  by  the 
action  of  the  court.  If  Moore  did  not  participate  in  the  plaintiff's 
arrest  and  detention,  there  was  nothing  for  the  appellant  to  be 
charged  with  on  Moore's  account.  If  he  did  participate,  then  the 
appellant  would  be  rightfully  held  responsible  for  the  consequences 
of  his  co-actor's  acts,  and  he  can  be  no  more  injured  by  Moore's 
escape,  whether  right  or  wrong,  from  a  judgment,  than  he  would 
have  been  had  Moore  not  been  joined  in  the  action.  In  this  view 
of  the  matter,  the  following  cases  are  not  only  suggestive,  but 
distinctly  pertinent.  Wilford  v.  Grant,  Kirby,  114;  Harris  v. 
Rosenberg,  43  Conn.  227,  231.  .  .  . 

There  is  no  error. ^ 

In  this  opinion  the  other  judges  concurred. 


DE  VALL  V.   DE  VALL. 

Supreme  Court  of  Oregon.     1911. 

[Reported  60  Oregon,  493.] 

This  is  an  action  by  Beatrice  De  Vail  against  Thomas  De  Vail 
to  recover  judgment  for  the  sum  of  $1,008,  with  interest  and  costs, 
upon  a  decree  of  the  circuit  court  of  the  State  of  Wisconsin.  This 
is  the  second  appeal.  For  a  full  statement  of  the  issues,  see  the 
same  case  in  57  Or   128  (109  Pac.  755). 

Upon  the  second  trial  had  on  November  19,  1910,  before  a  jury, 
verdict  was  rendered  for  the  defendant,  and  judgment  entered 
thereon.  Thereafter,  on  the  same  day,  a  motion  for  a  new  trial  was 
filed  by  plaintiff  upon  the  following  causes:  (1)  Because  the  court 
erred  in  overruling  plaintiff's  objection  to  the  reception  of  any 

1  Illinois  Central  R.  R.  Co.  v.  Foulks,  191  111.  57,  60  N.  E.  890;  Kansas 
City  V.  File,  60  Kan.  157,  55  Pac.  877;  May  v.  Butterworth,  106  Mass.  75; 
Moreland  v.  Durocher,  121  Mich.  398,  80  N.  W.  284,  accord.  Peterson  v.  Mid- 
dlesex &  Somerset  Traction  Co.,  71  N.  J.  L.  296,  59  Atl.  456  (overruled  by 
Moersdorf  v.  N.  Y.  Telephone  Co.,  84  N.  J.  L.  747,  87  Atl.  473,  decided  under 
the  New  Jersey  Practice  Act,  1912,  App.  A,  sees.  72,  73) ;  Bamberg  v.  Inter- 
national Ry.  Co.,  121  N.  Y.  App.  Div.  1, 105  N.  Y.  Supp.  621  (but  see  Draper  v. 
Interborough  Rapid  Transit  Co.,  124  N.  Y.  App.  Div.  357,  108  N.  Y.  Supp. 
691),  contra.  See  a  note  to  the  principal  case  in  27  L.  R.  A.  (n.  s.),  209.  — 
Ed. 


DE    VALL    V.    DE    VALL  485 

evidence  under  the  answer,  (2)  Because  the  court  erred  in  admit- 
ting evidence  against  the  objection  of  plaintiff.  (3)  Because  the 
court  erred  in  refusing  to  receive  evidence  offered  by  plaintiff  upon 
the  trial.  (4)  Because  the  verdict  was  contrary  to  law.  (5) 
Because  the  verdict  was  contrary  to  the  evidence.  (6)  Because 
the  court  erred  in  refusing  to  direct  a  verdict  upon  the  motion  of 
plaintiff  to  find  and  bring  a  verdict  for  plaintiff. 

February  14,  1911,  being  at  the  same  term  of  the  court,  upon 
consideration  of  such  motion,  the  court  made  the  following  order : 

"  This  cause  coming  on  to  be  heard  this  day,  on  the  motion  of  plaintiff, 
asking  that  a  judgment  heretofore  rendered  herein  to  be  set  aside  and  a 
new  trial  granted,  plaintiff  appearing  by  her  attorney,  Thos.  M.  Dill,  and 
defendant  appearing  by  liis  attorney,  A.  S.  Cooley,  and  the  court  having 
carefully  considered  and  weighed  all  the  evidence  introduced  on  the  trial 
of  this  case,  and  having  considered  the  entire  record  herein,  including  the 
instructions  given  to  the  jurors,  and  it  appearing  that,  among  the  instruc- 
tions given  by  the  court  to  the  jury,  was  the  following,  '  Upon  the  other 
hand,  if  the  defendant  has  satisfied  you  by  a  preponderance  of  the  evi- 
dence that  said  M.  C.  Porter  was  not  served  with  said  notice  on  said  24th 
day  of  April,  1907,  or  that  renewal  of  said  notice  at  the  October  term  of 
said  court  was  not  given  to  the  said  Porter,  then  you  should  find  for  the 
defendant,'  and  the  court  believing  that  said  instruction  was  erroneous, 
under  the  evidence  introduced  on  the  trial  of  this  case,  and  that  said  in- 
struction was  prejudicial  to  plaintiff,  therefore,  because  of  the  giving  of 
said  erroneous  instruction  as  above  quoted,  and  for  no  other  reason  or 
reasons,  it  is  ordered  and  adjudged  that  the  judgment  heretofore  rendered 
in  this  case  be  and  the  same  is  hereby  set  aside,  and  a  new  trial  is  hereby 
granted." 

From  this  order,  defendant  appealed,  under  Section  548,  L.  0.  L. 

Affirmed. 

Eakin,  C.  J.^  It  thus  appears  that,  although  there  was  a  motion 
to  set  aside  the  verdict,  the  court  in  its  discretion  [granted]  such 
motion  on  the  ground  of  error  not  assigned  in  it,  and  the  contention 
of  defendant  is  that  the  court  had  no  authority  to  set  aside  a  verdict 
upon  its  own  motion,  nor  upon  a  ground  not  assigned  in  the  motion. 
There  is  no  bill  of  exception  here,  and  the  defendant  does  not 
contend  that  the  instruction  mentioned  in  the  order  was  not 
erroneous.  Therefore  the  only  question  to  be  considered  is  as  to 
the  power  of  the  court  to  set  aside  a  judgment  and  grant  a  new 
trial,  either  on  its  own  motion,  or  upon  a  ground  of  error  not  as- 
signed in  the  motion.      Although  there  seems  to  be  some  conflict 

'  A  part  of  the  opinion  is  omitted,  together  with  the  opinion  of  McBride,  J., 
denying  a  rehearing.  —  Ed, 


486  MOTION    FOR   NEW    TRIAL 

of  opinion  upon  this  question,  the  great  weight  of  authority  sus- 
tains the  view  that  courts  of  general  jurisdiction  have  inherent 
power  to  correct  judicial  errors  for  the  purpose  of  promoting 
impartial  administration  of  justice,  and  the  right  of  a  court  to 
grant  a  new  trial  on  its  own  motion  is  generally  recognized.  .  .  . 

The  order  of  the  court,  vacating  the  judgment  and  granting  a 
new  trial,  is  affirmed.  Affirmed.^ 

[Smith,  Action  at  Law,  2d  ed.,  pp.  113,  129.] 

Another  incident  which  sometimes  occurs  during  the  trial,  is  the 
reservation  of  a  point.  This  happens  when  some  point  of  law  is 
raised,  the  decision  of  which  affects  the  fate  of  the  cause,  but,  as 
there  is  no  leisure  to  discuss  it  thoroughly  at  nisi  prius,  the  judge 
reserves  it  for  discussion  in  the  ensuing  term,  and,  in  such  case,  the 
court,  before  which  the  point  is  argued,  consider  themselves  in  the 
same  situation  as  the  judge  was  before  whom  it  was  originally 
raised,  and,  consequently,  have  power  to  order  a  verdict  or  a  non- 
suit to  be  entered  according  as  their  decision  on  the  point  may 
render  fit.  .  .  . 

A  motion  to  enter  a  verdict  or  nonsuit  pursuant  to  leave  obtained  for 
that  purpose  at  the  trial,  is  often,  indeed,  most  often,  made,  con- 
currently with  one  for  a  new  trial,  in  hopes  that,  if  the  application 
fail  in  one  shape,  it  may  prove  successful  in  the  other.  But  there 
is  this  difference  between  the  two  motions,  namely,  that  the  party 
has  a  right  to  move  for  a  new  trial,  and  cannot  be  prevented  from 
so  doing ;  whereas  a  motion  to  enter  a  verdict  or  a  nonsuit  never  is 
permitted  unless  the  judge  who  tried  the  cause  gave  the  defeated 
party  leave,  at  the  time  of  the  trial,  to  make  such  application;  for 
it  has  been  already  mentioned,  that  if  a  point  be  raised  at  nisi 
prius,  and  reserved  for  the  consideration  of  the  court  in  banc,  the 
court,  when  that  point  comes  to  be  discussed  before  it,  has  power 
to  do  whatever  the  judge  who  tried  the  cause  ought  to  have  done 
had  he  been  then  advised  upon  the  law  of  the  point  so  raised 
before  him.  And,  therefore,  if  he  ought  to  have  directed  the  jury 
to  find  a  particular  verdict,  the  court  will  order  such  a  verdict  to  be 

1  See  a  note  to  the  principal  case  in  40  L.  R.  A.  (n.  s.),  291. 

The  rule  of  the  principal  case  has  been  changed  by  statute  in  some  jurisdic- 
tions. See  Peirson  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  223,  77  N.  E.  769; 
Loveland  v.  Rand,  200  Mass.  142,  85  N.  E.  948. 

New  Trial  after  Judgment.  As  to  the  power  of  the  trial  court  to  grant  a 
new  trial  after  judgment,  see  Chapter  XI,  infra.  —  Ed. 


SOUTH   EASTERN    RAILWAY    CO.    V.    SMITHERMAN  487 

entered.  If  he  ought  to  have  recommended  the  plaintiff  to  sub- 
mit to  a  nonsuit,  the  court  above  will  direct  a  nonsuit.  But,  if  no 
point  have  at  the  time  of  trial  been  reserved  by  the  judge,  then  the 
court  in  banc  has  no  such  authority,  and  can  do  no  more  than 
refer  the  case  to  a  fresh  jury,  by  making  a  rule  for  a  new  trial 
absolute. 

In  South  Eastern  Railway  Company  v.  Smitherman  (reported 
London  Times,  July  17,  1883,  cited  Thayer,  Preliminary  Treatise 
on  Evidence  at  the  Common  Law,  241  note),  Blackburn,  L.  J., 
said: 

At  common  law  all  trials  by  jury  were  before  the  court  in  banc,  as 
trials  at  bar  now  are.  The  court  took  the  verdict  according  to  what 
they  thought  the  effect  of  the  findings  of  the  jury  before  themselves, 
and  gave  what  they  thought  the  proper  judgment.  When  trials 
at  nisi  prius  were  introduced,  at  first  only  in  the  country  before 
Justices  of  Assize,  and,  at  a  much  later  period,  in  Middlesex  and 
London,  where  there  were  no  assizes,  before  the  Chief  Justices 
of  the  Courts  of  Queen's  Bench  and  Common  Pleas  and  the  Chief 
Baron,  —  the  verdict  was  taken  by  the  judge  who  tried  the  case  at 
nisi  prius,  according  to  what  he  thought  the  legal  effect  of  the 
findings,  but  he  could  not  enter  judgment.  He  returned  to  the 
court  the  verdict,  and,  on  the  fourth  day  of  term,  the  verdict,  as  he 
returned  it,  was  entered  on  the  record  in  what  was  called  the  postea, 
and  on  that  the  court  in  banc  gave  judgment.  A  practice  began 
at  least  as  early  as  the  beginning  of  the  seventeenth  century,  by 
which  the  court  in  banc  would  entertain  a  motion,  if  made  within 
the  first  four  days  of  term,  while  the  proceedings  were,  as  it  was 
called,  in  paper  only,  to  stay  the  postea,  and  if  it  was  made  out  that 
there  had  been  any  miscarriage  at  the  trial,  to  set  aside  the  pro- 
ceedings at  nisi  prius  and  grant  a  new  trial.  But  they  could  do  no 
more.  However  clearly  it  appeared  that  the  verdict  ought  to  have 
been  entered  for  the  other  party,  the  court  in  banc  could  not  enter 
it.  The  judge  who  tried  the  cause  at  nisi  prius  might  by  his  notes 
amend  the  postea,  but  not  the  court.  This  defect  was  partially 
cured  by  a  practice  which  grew  up,  by  which  the  judge,  with  the 
consent  of  the  parties,  for  he  could  not  do  it  without,  reserved 
leave  to  move  in  banc  to  enter  the  verdict  the  other  way.  This 
practice  had,  before  the  Common  Law  Procedure  Act,  1852, 
become  the  established  law.  There  was  no  reason  why  the  motion 
should  not,  where  leave  was  reserved,  be  in  the  alternative  to  enter 
the  verdict  according  to  the  leave  reserved,  or  to  have  a  new  trial. 


488  MOTION    FOR   NEW   TRIAL 

on  the  ground  either  of  misdirection  of  the  judge  or  anything  else 
which  amounted  to  a  miscarriage  on  the  trial.  One  well-recog- 
nized head  of  miscarriage  was  when  the  verdict  was  against  the 
weight  of  evidence;  where,  if  the  court  thought  that,  though  the 
right  direction  in  law  was  given,  the  jury  had,  either  from  misap- 
prehension or  disregard  of  the  direction,  or  not  properly  appreciat- 
ing and  considering  the  evidence,  found  a  verdict  so  unsatisfactory 
that  it  ought  not  to  stand,  and  that  the  question  should  be  sub- 
mitted to  another  jury,  and  for  that  reason  granted  a  new  trial. 
Now,  I  think,  no  doubt  was  ever  entertained,  at  least,  I  am  not 
aware  of  any  case  in  which  any  was  expressed,  that  the  court,  in 
considering  whether  the  verdict  was  satisfactory  or  not,  looked  at 
everything  bearing  on  the  conduct  of  the  jury  up  to  the  time 
when  the  verdict  was  finally  taken.  If,  by  consent  of  the  parties, 
anything  was  reserved  for  the  court,  that  was  to  be  determined  by 
the  court;  but,  whether  it  was  reserved  or  not,  could  not  prevent 
the  court  from  considering  how  the  verdict  on  other  points  was 
obtained,  and  whether  it  was  satisfactory  or  not.  If  there  had 
been  a  bill  of  exceptions  tendered,  the  court  would  not  entertain  a 
motion  for  a  new  trial  on  any  ground  which  might  have  been  in- 
cluded in  it,  unless  the  bill  of  exceptions  was  abandoned,  but  the 
court  would  still  hear  a  motion  to  set  aside  the  verdict  as  against 
evidence.^ 


PROWELL  V.   NEUENDORF. 

Supreme  Court  of  Michigan.     1905. 

[Reported  141  Michigan,  272.] 

Montgomery,  J.  The  plaintiff  brought  an  action  of  ejectment 
to  recover  a  strip  of  land  claimed  by  her  to  be  a  portion  of  a  lot 
admittedly  owned  and  occupied  by  her.  Defendants  claimed  that 
a  line  had  been  established  between  plaintiff's  property  and  theirs 
by  agreement  and  acquiescence.  Tne  circuit  judge  submitted  this 
question  of  fact  to  the  jury,  who  found  for  the  plaintiff.  Later,  on 
a  motion  for  a  new  trial,  the  circuit  judge  set  aside  the  verdict  for 
plaintiff,  and  without  any  new  trial  directed  a  verdict  for  defend- 
ants and  entered  judgment  thereon.  This  practice  was  without 
precedent  and  unauthorized.     There  was  no  verdict  upon  which  to 

1  See  Casey  v.  Penn.  Asphalt  Paving  Co.,  109  Fed.  744;  11  Encyc.  of  PI.  & 
Pr.  921. 


DOWAGIAC    MANUFACTURING    CO.    V.    SCHROEDER  489 

Dase  the  judgment.  See  Central  Sav.  Bank  v.  O'Connor,  132 
Mich.  581;  Plunkett  v.  Railway  Co.,  140  Mich.  299. 

The  judgment  will  be  set  aside,  and  a  new  trial  ordered.  Plain- 
tiff will  recover  costs  of  this  court. 

Moore,  C.  J.,  and  Carpenter,  Grant,  and  Ostrander,  J  J., 
concurred. 


THE  DOWAGIAC   MANUFACTURING  COMPANY 
V.   SCHROEDER. 

Supreme  Court  of  Wisconsin.     1900. 

[Reported  108  Wiarnmin,  109.] 

Appeal  from  a  judgment  of  the  circuit  court  for  Brown  county: 
S.  D.  Hastings,  Jr.,  Circuit  Judge.  Ajfirmed. 

This  is  an  action  for  the  recovery  of  the  purchase  price  of  two 
grain  drills  sold  by  the  plaintiff  to  the  defendant  by  a  written  con- 
tract of  sale.  The  defense  relied  upon  was  that  the  defendant  was 
induced  to  sign  the  contract  by  fraudulent  representations  as  to  its 
contents.  The  plaintiff's  evidence  showed  the  execution  of  the 
contract  by  both  parties,  the  delivery  of  the  drills  as  provided  for 
by  the  terms  of  the  contract,  and  the  fact  of  nonpayment.  The 
defendant's  evidence  concerning  the  alleged  fraud  in  the  procuring 
of  the  contract  will  be  found  sufficiently  stated  in  the  opinion. 
The  jury  returned  a  verdict  for  the  defendant,  but  the  court,  on 
motion,  set  the  same  aside  and  entered  judgment  for  the  plaintiff 
for  the  purchase  price  of  the  drills,  for  the  reason  that  no  defense 
had  been  proven;  and  from  this  judgment  the  defendant  ap- 
peals. 

Winslow,  J.  It  was  shown  that  the  defendant  purchased  the 
grain  drills  in  question  by  a  written  contract,  and  the  only  defense 
attempted  to  be  made,  or  which  the  evidence  tends  to  establish, 
was  that  the  defendant  was  induced  to  sign  the  contract  of  purchase 
by  means  of  fraudulent  representations  made  by  the  plaintiff's 
agent  as  to  the  contents  of  the  contract. 

The  principle  of  law  is  that,  if  it  be  clear I3"  and  satisfactoril}^ 
proven  that  a  party  signed  a  note  or  contract  relying  upon  false 
and  fraudulent  representations  as  to  its  true  character,  and  was 
guilty  of  no  negligence  in  failing  to  ascertain  what  the  contract 
really  was,  he  is  not  bound  by  it.  Bowers  v.  Thomas,  62  Wis.  480, 
and  cases  cited. 


490  MOTION    FOR   NEW    TRIAL 

The  evidence  in  the  case  before  us  entirely  fails  to  meet  this  test. 
The  defendant  was  a  German  of  considerable  business  experience. 
He  had  been  in  the  business  of  selling  farm  machinery  fourteen 
years.  He  claims  he  could  not  read  English,  but  admits  on  cross- 
examination  that  he  could  read  enough  to  tell  what  the  meaning 
of  the  contract  was ;  and  the  proof  was  overwhelming,  by  his  own 
admissions,  that  he  could  read  business  papers.  He  could  write 
his  name  reasonably  well,  and  admits  making  out  notes  for  others 
to  sign.  He  had  been  a  school  director  in  his  district,  and  signed 
orders  and  teachers'  contracts.  His  son,  who  acted  as  his  book- 
keeper, was  present  when  the  contract  was  signed,  but  was  not 
called  as  a  witness.  This  son  was  twenty-two  years  of  age,  and 
had  a  good  education;  but  neither  the  father  nor  the  son  read  or 
tried  to  read  the  contract,  though  the  defendant  admits  that  there 
was  nothing  to  prevent  it.  Under  these  circumstances  there  was 
clear  neglect  in  signing  the  contract  without  ascertaining  its  con- 
tents. 

The  plaintiff's  right  of  recovery  was  clear  upon  the  undisputed 
evidence;  hence  the  trial  court  had  power,  upon  setting  aside  the 
erroneous  verdict,  to  render  judgment  in  accordance  with  such 
undisputed  evidence.  Gammon  v.  Abrams,  53  Wis.  323;  J.  &.  H. 
Clasgens  Co.  v.  Silber,  87  Wis.  357;  Calteaux  v.  Mueller,  102  Wis. 
525. 

By  the  court :  Judgment  affirmed.  ^ 


HESS   V.   GREAT  NORTHERN   RAILWAY  COMPANY. 
Supreme  Court  of  Minnesota.     1906. 

[Reported  98  Minnesota,  198.] 

Action  in  the  district  court  for  Ramsey  county  to  recover 
),000  for  personal  injuries.  The  case  was  tried  before  Orr,  J., 
and  a  jury,  which  rendered  a  verdict  in  favor  of  plaintiff  for  $4,000. 
From  an  order  denying  a  motion  for  judgment  notwithstanding  the 
verdict,  and  granting  a  motion  for  a  new  trial,  the  parties  severally 
appealed.  Affirmed  upon  both  appeals.  Clerk's  taxation  of 
costs  reversed.^ 

Brown,  J.  Action  for  personal  injuries,  in  which,  after  verdict 
for  plaintiff,  defendant  moved  in  the  alternative  for  judgment 
notwithstanding  the  verdict  or  for  a  new  trial.     The  court  denied 

1  Compare  Muench  v.  Heinemann,  119  Wis.  441,  96  N.  W.  800.  —  Ed. 

2  A  part  of  the  opinion,  relating  to  the  taxation  of  costs,  is  omitted.  —  Ed. 


HESS   V.    GREAT   NORTHERN    RAILWAY    COMPANY  491 

the  motion  for  judgment,  but  granted  a  new  trial.  Defendant 
appealed  from  so  much  of  the  order  as  denied  its  motion  for  judg- 
ment, and  plaintiff  appealed  from  the  part  granting  a  new  trial. 

The  facts,  briefly  stated,  are  as  follows :  Plaintiff,  in  November, 
1903,  chartered  a  car  in  which  to  transport  certain  household 
goods  and  farming  utensils  belonging  to  him  from  Freeborn  county, 
in  this  state,  to  Hunter,  in  the  state  of  North  Dakota,  where  he  had 
rented  a  farm  which  he  intended  to  operate  during  the  following 
year.  He  accompanied  the  car  on  its  journey,  and  occupied  the 
position  of  a  passenger,  though  he  rode  in  the  car  containing  his 
goods.  At  Campbell,  in  this  state,  on  November  27,  a  collision 
between  the  train  to  which  his  car  was  attached  and  another  on 
defendant's  road  resulted  in  wrecking  several  cars,  and,  as  claimed, 
seriously  injuring  plaintiff.  The  defense  to  the  action  was  (1)  that 
plaintiff  in  fact  received  no  serious  injury,  and  (2)  that  subsequent 
to  the  accident,  on  December  10,  1903,  defendant  settled  and  paid 
plaintiff  in  full  for  all  injuries  sustained  to  his  person,  and  that 
plaintiff  executed  and  delivered  to  it  a  written  release  and  dis- 
charge of  all  claims  for  such  injuries.  The  release  was  set  out  in 
hcec  verba  in  defendant's  answer,  to  which  plaintiff  replied  that  the 
same  was  obtained  by  fraudulent  representations  on  the  part  of  the 
agent  of  defendant  to  the  effect  that  it  was  a  release  and  discharge 
of  plaintiff's  claim  for  damage  to  his  personal  property  only.  The 
principal  question  litigated  on  the  trial,  aside  from  the  nature  and 
extent  of  plaintiff's  injuries,  was  this  issue  of  fraud.  The  jury 
found  in  plaintiff's  favor,  and  the  question  presented  to  this  court 
is  whether,  within  the  rule  governing  the  right  of  a  party  to  judg- 
ment notwithstanding  a  verdict,  the  evidence  is  so  far  conclusive 
that  no  fraud  was  perpetrated  by  defendant's  agent  in  making  the 
settlement  that  the  court  below  should  have  granted  defendant's 
motion. 

1.  The  correct  rule  on  this  subject  was  laid  down  in  the  case  of 
Cruikshank  v.  St.  Paul  F.  &  M.  Ins.  Co.,  75  Minn.  266,  77  N.  W. 
958,  where  it  was  held,  in  effect,  that  such  relief  was  not  proper  in 
any  case  where  the  evidence  offered,  if  true,  constitutes  a  cause  of 
action  or  a  defense.  Such  relief  is  never  granted  where  there  is  a 
clear  conflict  in  the  evidence.  Marquardt  v.  Hubner,  77  Minn. 
442,  80  N.  W.  617;  Kreatz  v.  St.  Cloud  School  District,  79  Minn. 
14,  81  N.  W.  533;  Bragg  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  81 
Minn.  130,  83  N.  W.  511;  Levine  v.  Barrett  &  Barrett,  83  Minn. 
145,  85  N.  W.  942,  87  N.  W.  847;  Fischer  v.  Sperl,  94  Minn.  421, 
103  N.  W.  502. 


492  MOTION    FOR   NEW    TRIAL 

The  evidence  introduced  by  defendant  tends  strongly  to  show 
that  the  settlement,  made  with  plaintiff  at  Hunter,  North  Dakota, 
by  an  agent  of  defendant,  was  intended  to  cover  all  damages  for 
injuries  to  his  person,  and  the  written  release  expressly  so  states. 
On  the  other  hand,  the  evidence  offered  by  plaintiff  is  direct  and 
positive  that  the  settlement  had  reference  solely  to  the  damage  and 
injury  to  his  personal  property.  Plaintiff  distinctly  testified  that 
the  subject-matter  of  his  personal  injuries  was  not  referred  to  at  the 
time  of  the  settlement,  except  that  defendant's  agent  stated  that 
his  claim  in  that  respect  could  be  settled  later.  That  the  settle- 
ment was  limited  to  plaintiff's  personal  effects  was  testified  to  by 
another  witness,  plaintiff's  niece,  who  was  present  at  the  time.  Her 
testimony  was  substantially  in  accord  with  that  given  by  plaintiff. 
Plaintiff  signed  the  written  document  evidencing  the  settlement, 
which  refers  solely  to  his  personal  injuries;  but  he  testified  that  by 
reason  of  his  injuries  he  was  unable  to  read  the  same,  that  it 
appeared  blurred  to  his  vision,  that  the  agent  read  it  to  him,  and 
that  he  signed  it  in  reliance  upon  his  statement  that  it  had  refer- 
ence to  his  personal  property.  In  this  state  of  the  evidence  the 
court  was  not  authorized  to  grant  judgment  notwithstanding  the 
verdict.^ 

2.  The  only  point  made  on  plaintiff's  appeal  from  the  order 
granting  a  new  trial  is  that  it  does  not  expressly  appear  therefrom 
that  it  was  granted  on  the  ground  that  the  verdict  was  not  sus- 
tained by  the  evidence  and,  as  the  record  presents  no  errors  in  law 
to  justify  a  new  trial,  the  order  should  be  reversed  and  the  verdict 
reinstated,  under  the  rule  in  Berg  v.  Olson,  88  Minn.  392,  93  N.  W. 
309,  Fitger  v.  Guthrie,  89  Minn.  330,  94  N.  W.  888,  and  Owens  v. 
Savage,  93  Minn.  468,  101  N.  W.  790.     Our  examination  of  the 

1  By  Minn.  Laws  1895,  c.  320,  it  is  provided  that:  "  In  aU  cases  where  at 
the  close  of  the  testimony  in  the  case  tried  a  motion  is  made  by  either  party  to 
the  suit  requesting  the  trial  court  to  direct  a  verdict  in  favor  of  the  party 
making  such  motion,  which  motion  was  denied,  the  trial  court  on  motion 
made  that  judgment  be  entered  notwithstanding  the  verdict,  or  on  motion  for 
a  new  trial,  shall  order  judgment  to  be  entered  in  favor  of  the  party  who  was 
entitled  to  have  a  verdict  directed  in  his  or  its  favor;  and  the  supreme  court  of 
the  state  on  appeal  from  an  order  granting  or  denying  a  motion  for  a  new 
trial  in  the  action  in  which  such  motion  was  made  may  order  and  direct  judg- 
ment to  be  entered  in  favor  of  the  party  who  was  entitled  to  have  such  verdict 
decided  in  his  or  its  favor  whenever  it  shall  appear  from  the  testimony  that 
the  party  was  entitled  to  have  such  motion  granted."  See  also  Laws  1913, 
c.  245  (Minn.  Gen.  Stats.,  sec.  7998) 

This  statute  is  constitutional.  See  Kernan  v.  St.  Paul  City  Ry.  Co.,  64 
Minn.  312,  67  N.  W.  71.  —  Ed. 


FORMS  493 

memorandum  attached  to  the  order  appealed  from  leads  to  the 
conclusion  that  it  was  in  fact  based  upon  the  ground  that  the  ver- 
dict was  not  sustained  by  the  evidence,  and,  although  it  is  not 
expressly  and  in  so  many  words  so  stated,  yet  it  is  sufficiently  so 
indicated.  It  was  therefore  a  discretionary  order,  within  the  rule 
of  Hicks  V.  Stone,  13  Minn.  398  (434). 

The  order  of  the  court  below  is  affirmed  on  both  appeals.^ 

(Form  of  Notice  of  Motion  for  New  Trial.)  ^ 

In  the Court  of  the  County  of ,  State  of 

A.  B.,  plaintiff, 
against 

C.  D.,  defendant. 

Please  take  notice  that  on  the  affidavits  of  P.  Q.  and  R.  S.  copies 

of  which  are  hereto  annexed,  the  undersigned  will  on  the day 

of ,  19 ,  at  the  hour  of o'clock  a.m.  of  the  said  day, 

or  as  soon  thereafter  as  counsel  can  be  heard,  at  the  court-house 

in  the  city  of in  the  said  county,  move  the  court  for  an 

order  setting  aside  the  verdict  herein,  rendered  on  the day  of 

,  19 ,  and  granting  a  new  trial  herein,  on  the  grounds 

of  misconduct  of  M.  N.,  one  of  the  jurors  who  rendered  the  afore- 
said verdict. 

Dated, 

X.  Y.,  Attorney  for  Defendant. 
{Address.) 

To  V.  W.,  Attorney  for  Plaintiff. 

'  See  Dalmas  v.  Kemble,  21.5  Pa.  410,  64  Atl.  559  (decided  under  a  statute, 
Act  of  April  22,  1905,  P.  L.  286,  similar  to  the  Minnesota  statute).  Compare 
Bothwell  V.  Boston  Elevated  Ry.  Co.,  215  Mass.  467,  supra,  p.  341;  Pattison  v. 
Livingston  Amusement  Co.,  156  N.  Y.  App.  Div.  368,  141  N.  Y.  Supp.  588. 

The  Federal  courts  are  precluded  by  the  Seventh  Amendment  to  the 
Constitution  of  the  United  States  from  applying  this  practice.  See  Slocum  v. 
N.  Y.  Life  Ins.  Co.,  228  U.  S.  364,  57  L.  ed.  879,  33  S.  Ct.  523;  Young  v. 
Central  R.  R.  Co.  of  N.  J.,  232  U.  S.  602,  supra,  p.  340.  See  an  article  by  J.  L. 
Thorndike,  Esq.,  on  "  Trial  by  Jury  in  the  United  States  Courts,"  in  26  Harv. 
L.  Rev.  732;  and  an  article  by  Professor  Henry  Schofield  on  "  New  Trials  and 
the  Seventh  Amendment,"  in  8  111.  L.  Rev.  287,  381,  465.  And  see  Reports  of 
the  Amer.  Bar  Assoc,  Vol.  XXXVIII  (1913),  561.  —  Ed. 

^  As  to  the  necessity  of  notice  of  motion,  see  14  Encyc.  of  PI.  and  Pr.  895.  — 
Ed. 


CHAPTER  IX. 

MOTIONS  BASED  ON  THE  PLEADINGS. 

Section  I. 
Motion  in  Arrest  of  Judgment. 

PELICAN  ASSURANCE  COMPANY  v.   AMERICAN 
FEED   &   GROCERY   COMPANY  ef  aL 

Supreme  Court  of  Tennessee.     1909. 
[Reported  122  Tennessee,  652.] 

Beard,  C.  J.  The  question  here  involved  is  the  same  that  was 
considered  and  disposed  of  in  Hall  v.  State,  110  Tenn.,  366,  75  S.  W., 
716.  In  that  case,  as  in  this,  the  minute  entry  was  that  the  de- 
fendant moved  "  the  court  in  arrest  of  judgment  and  for  a  new 
trial  ";  and  it  was  there  held  that,  whether  the  motion  was  single, 
"  embracing  two  distinct,  if  not  incongruous,  matters  of  proced- 
ure," or  the  entry  was  construed  as  the  "  equivalent  of  a  recital 
of  the  two  motions,"  yet  the  necessary  inference  would  be  "  that 
the  motion  in  arrest  was  first  made,  and  .  .  .  was  disposed  of 
first."  In  this  condition  of  the  record,  the  court  applied  the  rule 
that  the  making  of  motion  in  arrest  prior  to  the  motion  for  a  new 
trial  was  a  waiver  of  the  latter  motion,  and  the  legal  effect  of  this 
waiver  was  that  the  court  on  appeal  was  "  confined  to  error 
assigned  on  the  face  of  the  record."  ^ 

In  the  case  at  bar  errors  are  assigned  upon  the  action  of  the 
trial  judge  in  admitting  over  objection  incompetent  testimony,  in 
overruling  a  motion  for  peremptory  instruction,  in  giving  certain 
instructions  to  the  jury,  and  failing  to  grant  requests  that  were  sub- 
mitted. It  will  be  observed  that  these  errors,  if  committed, 
occurred  in  the  trial  of  the  cause,  and  would  have  constituted 
grounds  of  a  motion  for  a  new  trial,  made  in  the  court  below,  to  the 

1  Kelley  v.  Bell,  172  Ind.  590,  88  N.  E.  58,  accord.  Gerling  v.  Agricultural 
Ins.  Co.,  39  W.  Va.  689,  20  S.  E.  691  (where  the  motions  were  made  simul- 
taneously as  in  the  principal  case);  Jewell  v.  Blandford,  7  Dana  (Ky.),  472 
(where  the  motion  for  a  new  trial  was  made  subsequently  to  the  motion  in 
arrest),  contra.  See  Williams  v.  State,  121  Ga.  579,  49  S.  E.  689.  See  2  Tidd, 
Practice,  9th  ed.,  913.  —  Ed. 

494 


BAKER   V.    SHERMAN    &    MILLER  495 

end  that  a  retrial  might  be  obtained,  or,  faiUng  in  this,  then  to 
preserve  the  same  in  the  record,  so  that  the  ruUng  of  the  trial  judge 
in  declining  the  motion  might  be  preserved  to  the  plaintiff  in  error. 
Railroad  v.  Johnson,  114  Tenn.,  633,  88  S.  W.,  169.  Resting  upon 
matters  extrinsic  to  the  technical  record,  they  could  only  be  pre- 
served for  review  in  this  court  by  a  properly  filed  bill  of  exceptions. 
If,  as  is  contended  by  counsel  for  plaintiff  in  error,  they  can  here  be 
made  the  subject  of  investigation,  bj'  reason  of  the  motion  in  arrest 
having  been  overruled,  then  we  can  see  no  distinction  between 
that  and  a  motion  for  new  trial;  for  the  ver\'  errors  that  are  now 
made  the  subject  of  complaint  are  those  which  would  have  been 
properly  raised  on  this  latter  motion.  It  is  apparent  that,  to  secure 
a  reversal  on  account  of  these  errors,  it  would  be  necessary  to  look 
beyond  the  "  face  of  the  record  "  into  the  evidence  introduced. 
This  cannot  be  done.  It  is  well  settled  by  the  authorities  that  a 
motion  in  arrest  of  judgment  lies  alone  for  some  error  which 
vitiates  the  proceeding,  or  is  of  so  serious  a  character  that  judg- 
ment should  not  be  rendered.  It  "  can  only  be  maintained  for  a 
defect  upon  the  face  of  the  record,  and  the  evidence  is  no  part  of  the 
record  for  this  purpose."  Bond  v.  Dustin,  112  U.  S.,  604,  5  Sup. 
Ct.,  296,  28  L.  Ed.,  835;  Van  Stone  v.  Stillwell  E.  T.  C.  Co.,  142 
U.  S.,  128,  12  Sup.  Ct.,  181,  35  L.  Ed.,  961;  23  Cyc,  825. 

Applying  this  rule  of  correct  procedure  to  the  present  case,  it 
follows  that  the  judgment  must  be  affirmed.^ 


BAKER  et  at.  v.   SHERMAN   &   MILLER. 

Supreme  Court  of  Vermont.     1901. 

[Reported  73  Vermont,  26.] 

Rowell,  J.2  This  is  an  action  on  the  case  for  deceit  in  the  sale  of 
land.  Plea  the  general  issue  and  trial  by  ju^>^  Verdict  and 
judgment  for  the  plaintiffs. 

The  declaration  originally  contained  but  one  count,  which  alleges 
that  the  defendants  "  sold  and  conveyed  to  the  plaintiffs  their 

^  Nor  on  such  a  motion  can  advantage  be  taken  of  insufficiency  of  the  evi- 
dence, Bond  V.  Dustin,  112  U.  S.  604,  28  L.  ed.  835,  5  S.  Ct.  296;  State  v. 
Young,  153  la.  4,  132  N.  W.  813,  Ann.  Cas.  1913  E,  p.  70;  Hubbard  v.  Rut- 
land R.  R.  Co.,  80  Vt.  462,  68  Atl.  647;  nor  of  a  variance,  Jacobs  v.  Marks, 
183  lU.  533,  56  N.  E.  154,  affirmed  182  U.  S.  583,  45  L.  ed.  1241,  21  S.  Ct.  865. 
—  Ed. 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 


496  MOTIONS    BASED    ON    THE    PLEADINGS 

interest  in  "  1305  acres  of  timber  land  at  such  a  price.  The  fraud 
alleged  is,  the  knowingly  false  representation  that  the  entire  tract 
was  situated  within  a  natural  basin,  and  bounded  on  the  east, 
south,  and  west  by  the  crest  of  a  certain  range  of  mountains,  and 
that  the  entire  tract  situated  within  said  basin  and  bounds  was 
comprised  within  said  tract  of  1305  acres,  whereas  200  acres  of 
said  last-mentioned  tract  lay  beyond  the  crest  of  said  range,  and 
75  acres  lying  within  said  basin  did  not  belong  to  the  defendants 
and  was  not  a  part  of  the  tract  conveyed. 

The  new  count  alleges  that  the  defendants  sold  and  conveyed  to 
the  plaintiffs  "  their  interest  in  "  that  portion  of  lot  4  in  range  6  in 
Jay  that  lies  west  of  the  crest  of  said  range,  which  runs  across  it, 
at  such  another  price,  and  fraudulently  represented  that  said 
portion  contained  55  acres,  whereas  it  contained  only  about  20 
acres. 

Neither  count  alleges  that  the  defendants  or  either  of  them  had  or 
claimed  to  have  any  interest  in  said  land  or  any  part  thereof,  by 
possession,  color,  or  otherwise  howsoever,  nor  that  the  plaintiffs 
or  either  of  them  were  induced  to  believe  or  did  believe  that  they 
had.  .  .  . 

The  defendants  moved  in  arrest  of  judgment,  for  that  the 
declaration  does  not  allege  that  the  defendants  or  either  of  them, 
at  the  time  of  the  alleged  sale  and  conveyance,  or  ever,  had  or 
owned  any  right,  title,  or  interest  in  or  to  the  whole  or  any  part  of 
the  land  mentioned  in  the  declaration,  and  that  therefore  it  does 
not  appear  thereby  that  the  plaintiffs  have  suffered  any  damage. 

The  plaintiffs  claim  that  the  testimony  incorporated  into  the 
bill  of  exceptions  is  a  part  of  the  record,  and  can  be  looked  into  on 
this  motion,  and  that  that  shows  that  the  defendants  did  have  an 
interest  in  the  land.  But  nothing  is  better  settled  than  that  the 
testimony  is  not  a  part  of  the  record  for  this  purpose,  and  that  on  a 
motion  in  arrest  for  insufficiency  of  the  declaration,  only  the  declara- 
tion itself,  and  the  subsequent  pleadings  that  may,  and  sometimes 
do,  help  it  out,  can  be  looked  into.  Harding  v.  Cragie,  8  Vt.  501, 
508.  The  law  of  the  subject  is,  that  if  the  declaration  omits  to 
allege  any  fact  essential  to  a  right  of  action,  and  it  is  not  implied 
in  nor  inferable  from  the  finding  of  those  that  are  alleged,  a  verdict 
for  the  plaintiff  does  not  cure  the  defect.  Thus,  in  assumpsit,  no 
consideration  alleged  and  verdict  for  the  plaintiff;  judgment 
must  be  arrested,  for  finding  that  defendant  promised  does  not 
imply  a  finding  of  consideration  for  the  promise.  So  here,  finding 
that  the  defendants  deceived  the  plaintiffs  as  alleged,  furnishes 


BAKER   V.    SHERMAN    &    MILLER  497 

uo  legal  intendment  that  the  defendants  had  an  interest  in  the 
land,  nor  that  the  plaintiffs  were  damaged  by  the  deceit,  for  they 
could  not  have  been  damaged  by  it  unless  the  defendants  had  an 
interest,  which  is  not  alleged  nor  implied  from  the  finding  of  any- 
thing that  is  alleged.  The  allegation  is  that  the  defendants  sold 
and  conveyed  to  the  plaintiffs  "  their  interest  "  in  the  land,  not 
the  land  itself.  It  is  said  that  this  allegation  is  sufficient,  for  when 
one  sells  land  to  another,  ownership  is  implied  and  need  not  be 
alleged,  and  that  so  are  the  precedents  for  deceit  in  the  sale  of  both 
real  and  personal  estate.  But  they  are  so  only  when  the  thing 
itself  is  sold,  not  when  only  the  right,  title,  and  interest  therein  is 
sold,  for  in  such  case,  neither  in  pleading  nor  elsewhere,  does  the 
law  imply  ownership  in  land  nor  in  chattels;  not  in  chattels,  as 
shown  by  Sherman  v.  Champlain  Transportation  Co.,  31  Vt.  162, 
175,  and  a  note  in  62  Am.  Dec.  463;  not  in  land,  as  shown  by  Cum- 
mings  V.  Dearborn,  56  Vt.  441.  That  was  an  action  on  covenants 
of  title  and  warranty  in  a  quitclaim  deed;  and  it  was  held  that  the 
covenants  did  not  enlarge  the  grant,  but  were  only  co-extensive 
with  it,  and  that  if  the  grantor  had  no  interest  in  the  land,  the 
covenants  were  of  no  value.  Nor  do  such  covenants  in  such  a 
deed  estop  the  grantor  from  asserting  an  after-acquired  title. 
Hanrick  v.  Patrick,  119  U.  S.  156,  175. 

So  the  allegation  here  amounts  to  no  more  than  that  the  defend- 
ants quitclaimed  their  interest  to  the  plaintiffs,  which  implies  no 
title  nor  claim  of  title,  but  means  only  that  the  defendants  con- 
veyed their  interest,  whatever  it  was;  and  in  such  a  case,  in  the 
absence  of  an  allegation  of  fraudulent  representations  as  to  title, 
caveat  emptor  applies.     8  Am.  &  Eng.  Ency.  Law,  2d  ed.  53, 

It  follows,  therefore,  that  the  motion  in  arrest  must  prevail, 
unless  the  plaintiffs  are  allowed  to  avoid  it  by  amendment,  which 
they  ask  leave  to  do,  on  the  authority  of  Chaffee  v.  The  Rutland 
R.  R.  Co.,  71  Vt.  384;  for  they  say  that  the  testimony  incorpo- 
rated into  the  exceptions  shows  that  the  defendants'  ownership  was 
proved.  An  amendment  of  this  kind  at  this  stage  of  a  case  should 
be  allowed  only  when  it  is  clear  that  the  matter  was  an  issue  on 
trial,  and  as  fully  litigated  as  though  it  had  been  raised  by  the 
pleadings;  for  otherwise  great  injustice  might  be  done  to  the 
defendant  by  being  cast  on  an  issue  that  he  had  no  notice  of  and 
did  not  come  prepared  to  try. 

Now  although  there  was  testimony  on  both  sides  tending  to 
show  claim  and  representation  of  ownership  by  the  defendants, 
yet  it  came  in  in  connection  with,  and  as  a  part  of,  testimony  that 


498  MOTIONS    BASED    ON    THE    PLEADINGS 

was  directed  to  the  issues  made  by  the  pleadings,  and  does  not 
appear  to  have  been  taken  note  of  by  either  side  as  raising  an  issue 
as  to  claim  and  representation  of  title,  which  was  a  matter  dehors 
the  pleadings.  In  Chaffee  v.  The  Railroad  Company,  it  was 
apparent  from  the  exceptions  that  the  question  was  fully  litigated, 
and  that  the  amendment  would  present  no  new  issue  nor  require 
any  different  proof.  That  cannot  be  said  in  this  case,  and  there- 
fore leave  to  amend  in  order  to  avoid  the  motion  is  denied.^ 


CHAFFEE  et  al.  v.   RUTLAND   RAILROAD  COMPANY. 

Supreme  Court  of  Vermont.     1899. 

[Reported  71  Vermont,  384.] 

Taft,  C.  J.  This  action  is  brought  to  recover  damages  for  the 
destruction  of  the  plaintiffs'  property  by  fire  communicated  by 
the  defendant's  engine.  It  is  alleged  in  the  declaration  that  the 
defendant  so  carelessly,  negligently  and  imprudently  managed  its 
engine,  that  the  plaintiffs'  property  was  destroyed  by  fire  communi- 
cated therefrom.  There  is  no  allegation  that  the  defendant's 
engine  was  not  properly  equipped  with  suitable  spark  arresters  and 
ash-pans,  nor  that  the  defendant  permitted  dry  grass,  weeds,  etc. 
to  accumulate  on  its  road-bed.  The  defendant  objected  to  the 
proof  of  such  facts,  that  is,  that  the  engine  was  not  equipped  with 
suitable  spark  arresters  and  ash-pans  and  the  accumulation  of  dry 
grass  and  weeds  on  its  road-bed,  and  also  to  the  charge,  that  if 
such  facts  were  established,  the  plaintiffs  had  a  right  to  recover. 

The  members  of  the  court  are  not  agreed  in  respect  to  the  case 
as  shown  by  the  record  but  concur  in  holding  that  if  the  declaration 
had  contained  the  allegations  of  negligence  in  the  construction  or 
condition  of  the  engine  in  the  respects  named,  and  in  the  accumula- 
tion of  dry  grass  and  weeds,  there  was  no  error  in  the  admission  of 
the  testimony  nor  in  the  charge  of  the  court.  The  question  arises 
whether  this  court  will  permit  such  an  amendment  to  be  now  made 
after  judgment.     The  cause  was  fully  tried  as  though  such  alle- 

1  The  court  at  the  next  term  granted  a  venire  de  novo  on  terms  as  to  the 
payment  of  costs  by  the  plaintiffs  and  directed  that  if  a  new  trial  was  not 
wanted  on  those  terms,  judgment  on  the  verdict  should  be  arrested.  As  to  this, 
see  infra,  p.  514. 

Compare  Rushton  v.  Aspinall,  2  Doug.  679;  Reed  v.  Browning,  130  Ind.  575, 
30  N.  E.  704;  Southern  Ry.  Co.  /■.  Maxwell,  113  Tenn.  464,  82  S.  W.  1137.  See 
Gould,  Pleading,  Hamilton's  ed.,  472.  —  Ed. 


CHAFFEE    V.    RUTLAND    RAILROAD    CO.  499 

gations  were  in  the  declaration.  It  is  expressly  stated  in  the  ex- 
ceptions that  both  parties  gave  testimony  pro  and  con  upon  the 
questions  of  the  defective  spark  arrester  and  ash-pan,  and  the  accu- 
mulation of  dry  grass  and  weeds.  Such  testimony  was  admissible 
upon  the  question  of  whether  the  first  was  communicated  to  the 
plaintiffs'  property  by  the  defendant's  engine.  It  is  apparent 
from  the  exceptions  that  the  questions  were  fully  litigated.  The 
course  of  the  trial  was  the  same  as  if  the  allegations  had  not  been 
omitted  and  an  amendment  of  the  declaration  will  present  no  new 
issue  nor  require  any  different  proof.  V.  S.  1148  authorizes  a 
court  at  any  time  to  permit  either  of  the  parties  to  amend  a  defect 
in  the  pleadings  upon  such  conditions  as  the  court  prescribes.  In 
Bates  V.  Cilley,  47  Vt.  1,  an  amendment  was  permitted  after  verdict 
and  before  judgment  and  also  in  Kimball  v.  Ladd,  42  Vt.  747,  and 
see  many  cases  therein  cited.  At  common  law  the  court  had  power 
to  allow  an  amendment  of  the  pleadings  in  any  case  until  final 
judgment  and  after  motion  in  arrest  of  judgment.  Amendments 
after  trial  are  allowed  in  order  to  conform  the  pleading  to  the  facts 
proved. 

None  of  our  cases  go  to  the  extent  of  permitting  an  amendment 
after  judgment  but  the  court  under  the  statute  V.  S.  1148,  clearly 
have  that  power.  All  amendments  are  in  the  discretion  of  the 
court  and  are  allowed  or  refused  as  the  court  may  deem  most  con- 
ducive, to  the  furtherance  of  justice.  An  amendment  is  not 
allowed  if  it  introduces  a  new  cause  of  action.  An  amendment  in 
the  case  before  us  is  only  permitted  in  order  that  the  pleadings 
may  conform  to  the  proof  and  for  the  purpose  of  sustaining  the 
judgment,  not  reversing  it.  1  Ency.  PI.  and  Prac.  582.  For  as 
said  by  Redfield,  C.  J.,  in  Bank  v.  Downer,  29  Vt.  332,  "  an  amend- 
ment will  cure  error  but  cannot  create  it." 

The  plaintiffs  may  amend  their  declaration  by  filing  an  amend- 
ment alleging  the  defendant's  negligence  in  the  construction  or 
condition  of  the  spark  arrester  and  ash-pan  of  its  engine,  and  in 
permitting  an  accumulation  upon  its  road-bed,  of  dry  grass,  weeds, 
bushes,  etc.,  and  when  such  amendment  is  made  the. 

Judgment  may  be  affirmed,  but  without  costs  in  this  court. 


500  MOTIONS    BASED    ON    THE    PLEADINGS 

THE   CHICAGO  AND   ALTON   RAILROAD   COMPANY 
V.   CLAUSEN. 

Supreme  Court  of  Illinois.     1898. 
[Reported  173  Illinois,  100.] 

Cartwright,  J.^  Appellee  brought  this  suit  against  appellant 
to  recover  damages  for  injuries  alleged  to  have  been  sustained  by 
the  starting  of  a  train  on  which  he  was  a  passenger,  while  he  was 
attempting  to  get  off  at  appellant's  station  at  Gardner,  Illinois. 
There  was  a  judgment  for  appellee,  which  has  been  affirmed  by  the 
Appellate  Court. 

It  is  argued  at  much  length  that  the  trial  court  improperly 
overruled  a  demurrer  to  the  first  original  count  and  five  amended 
counts  of  the  declaration  upon  which  the  case  finally  went  to  trial. 
No  error  has  been  assigned  upon  such  ruling  on  the  demurrer, 
either  in  the  Appellate  Court  or  this  court,  and  none  could  be  so 
assigned,  for  the  reason  that  after  the  demurrer  was  overruled  the 
defendant  pleaded  the  general  issue  and  thereby  raised  an  issue 
of  fact,  which  was  tried.  It  has  alwaj^s  been  the  rule  in  this  State 
that  if  a  party  wishes  to  have  the  action  of  a  court  in  overruling  his 
demurrer  reviewed  in  this  court  he  must  abide  by  the  demurrer. 
By  pleading  over  he  waives  the  demurrer  and  the  right  to  assign 
error  upon  the  ruling.  Lincoln  v.  Cook,  2  Scam.  61;  Wann  v. 
McGpon,  id.  74;  Nye  v.  Wright,  id.  222;  Dickhut  v.  Durrell,  11 
111.  72;  Walker  v.  Welch,  14  id.  277;  American  Express  Co.  v. 
Pinckney,  29  id.  392;  Gardner  v.  Haynie,  42  id.  291;  Ambler 
V.  Whipple,  139  id.  311;  Dunlap  v.  Chicago,  Milwaukee  and  St. 
Paul  Railway  Co.,  151  id.  409;  drier  v.  Gibson,  36  id.  521;  Hull  v. 
Johnston,  90  id.  604. 

Defendant  made  a  motion  in  arrest  of  judgment,  which  was 
overruled,  and  that  is  assigned  for  error;  but  having  once  had  the 
judgment  of  the  court  on  its  demurrer  it  could  not  again  invoke  it 
for  the  same  reasons  by  motion  in  arrest.  After  a  judgment 
overruling  a  demurrer  to  a  declaration  there  can  be  no  motion  in 
arrest  of  judgment  on  account  of  any  exception  to  the  declaration 
that  might  have  been  taken  on  the  argument  of  the  demurrer. 
Rouse  y.  County  of  Peoria,  2  Gilm.  99;  Quincy  Coal  Co.  f.  Hood,  7 
111.  68;  American  Express  Co.  v.  Pinckney,  supra;  Independent 
Order  of  Mutual  Aid  v.  Paine,  122  111.  625.^ 

*  A  part  of  the  opinion  is  omitted.  —  Ed. 

2  See  Edwards  v.  Blunt,  1  Strange,  425,  in  which  the  following  opinion  was 
given:    "  Per  curiam.  After  judgment  on  demurrer,  the  defendant  shall  not 


CHICAGO    AND    ALTON    RAILROAD    COMPANY   V.    CLAUSEN       501 

While  the  defendant,  by  pleading  over,  waived  its  demurrer  and 
the  right  to  assign  error  upon  the  ruling  of  the  court  on  the  de- 
murrer, it  did  not  waive  innate  and  substantial  defects  in  the 
declaration  which  would  render  the  declaration  insufficient  to  sus- 
tain a  judgment,  and  the  question  whether  it  is  so  far  defective 
may  be  considered  under  the  assignments  of  error.  The  question 
which  may  be  thus  presented  is  not  as  broad  as  those  questions 
which  may  be  raised  by  demurrer,  for  the  reason  that  defects  in 
pleading  may  sometimes  be  aided  by  the  pleadings  of  the  opposite 
party,  or  be  cured  by  the  Statute  of  Amendments  and  Jeofails,  or 
by  intendment  after  verdict.  The  objections  made  to  the  various 
counts  of  the  declaration  are,  that  the  statements  therein  are  too 
general  and  indefinite  in  failing  to  show  how  the  starting  of  the 
train  operated  to  throw  plaintiff  from  it  and  in  what  manner  it  was 
started,  and  that  the  various  counts  allege  certain  duties  on  the 
part  of  the  defendant,  and  charge  the  neglect  and  violation  of 
other  duties,  and  the  doing  of  other  acts  foreign  to  the  duties  so 
alleged,  as  the  cause  of  the  supposed  injuries.  So  far  as  the  declara- 
tion is  defective  in  the  respects  complained  of,  the  defendant's  plea 
of  the  general  issue,  of  course,  could  not  aid  or  supply  any  omission 
or  informality  therein.  It  is  also  true  that  the  Statute  of  Amend- 
ments and  Jeofails  does  not  extend  to  cure  defects  which  are 
clearly  matters  of  substance.  It  provides  that  judgment  shall 
not  be  reversed  for  want  of  any  allegation  or  averment  on  account 
of  which  omission  a  special  demurrer  could  have  been  maintained, 
but  it  does  not  protect  a  judgment  by  default  against  objections 
for  matter  of  substance.      Many  such  objections,  however,  have 

come  to  arrest  the  judgment  on  return  of  the  inquiry,  for  an  exception  that 
might  have  been  taken  on  arguing  the  demurrer.  The  parties  cannot  be  said 
to  come  as  atnici  cur',  nor  shall  any  body  tell  us  that  the  judgment  we  gave  on 
mature  deUberation  is  wrong;  it  is  otherwise  indeed  in  the  case  of  judgment  by 
default,  for  that  is  not  given  in  so  solemn  a  manner;  or  if  the  fault  arises  on 
the  writ  of  inquiry  or  verdict,  for  there  the  party  could  not  allege  it  before. 
How  V.  Godfrey,  Mich.  4  Geo.  2."  And  see  White's  Admrx.  v.  Central 
Vermont  Ry.  Co.,  87  Vt.  330,  89  Atl.  618. 

But  see  Stewart  v.  Terre  Haute,  etc.,  R.  R.  Co.,  103  Ind.  44,  2  N.  E.  208, 
in  which  the  opposite  view  is  taken.  See  also  Field  v.  Slaughter,  1  Bibb  (Ky.), 
160,  where  it  was  held  that  the  court,  having  improperly  overruled  the  de- 
fendant's demurrer  to  the  plaintiff's  repUcation,  properly  sustained  a  motion 
in  arrest  of  judgment. 

The  defendant's  failure  to  demur  or  his  interposing  a  demurrer  on  other 
grounds  of  objection  does  not  preclude  him  from  relying  on  a  particular  objec- 
tion on  a  motion  in  arrest  of  judgment.  Southern  Ry.  Co.  v.  Maxwell,  113 
Tenn.  464,  82  S.  W.  1137.  —  Ed. 


502  MOTIONS    BASED    ON    THE    PLEADINGS 

always  been  cured,  at  the  common  law,  by  a  verdict.  At  the 
common  law,  independently  of  any  statute,  the  rule  was  and  is 
''  that  where  there  is  any  defect,  imperfection  or  omission  in  any 
pleading,  whether  in  substance  or  form,  which  would  have  been  a 
fatal  objection  upon  demurrer,  yet  if  the  issue  joined  be  such  as 
necessarily  required,  on  the  trial,  proof  of  the  facts  so  defectively 
or  imperfectly  stated  or  omitted,  and  without  which  it  is  not  to  be 
presumed  that  either  the  judge  would  direct  the  jury  to  give  or  the 
jury  would  have  given  the  verdict,  such  defect,  imperfection  or 
omission  is  cured  by  the  verdict."  1  Chitty's  PI.  763.  This  rule 
was  quoted  and  approved  in  Keegan  v.  Kinnare,  123  111.  280,  and 
Chicago  and  Eastern  Illinois  Railroad  Co.  v.  Hines,  132  id.  161. 
The  intendment  in  such  case  arises  from  the  joint  effect  of  the 
verdict  and  the  issue  upon  which  it  was  given,  and  if  the  declaration 
contains  terms  sufficiently  general  to  comprehend,  by  fair  and 
reasonable  intenchnent,  any  matter  necessary  to  be  proved,  and 
without  proof  of  which  the  jury  could  not  have  given  the  verdict, 
the  want  of  an  express  statement  of  it  in  the  declaration  is  cured  by 
the  verdict.  Under  this  rule  a  verdict  will  aid  a  defective  state- 
ment of  a  cause  of  action,  but  will  never  assist  a  statement  of  a 
defective  cause  of  action.  1  Chitty's  PI.  681.  Where  the  declara- 
tion and  the  issue  joined  upon  it  do  not  fairly  impose  the  duty  on 
the  plaintiff  to  prove  the  omitted  fact,  the  omission  will  not  be 
cured,  Joliet  Steel  Co.  v.  Shields,  134  111.  209,  and  if,  with  all  the 
intendments  in  its  favor,  the  declaration  is  so  defective  that  it  will 
not  sustain  a  judgment,  such  defects  may  be  taken  advantage  of  on 
error.  Wilson  v.  Myrick,  26  111.  34;  Schofield  v.  Settley,  31  id. 
515;  Chicago  and  Eastern  Illinois  Railroad  Co.  v.  Hines,  supra; 
Culver  V.  Third  Nat.  Bank,  64  111.  528.  The  rule  was  applied  in 
Haynes  v.  Lucas,  50  111.  436,  and  the  judgment  was  reversed. 
That  was  an  action  in  debt  on  a  contract  for  the  sale  of  land,  and  a 
plea  of  nil  debet,  which  was  bad,  had  been  filed,  but  it  was  said  that 
if  the  plea  had  been  good  the  defect  would  be  ground  of  error.  So 
in  Kipp  V.  Lichtenstein,  79  111.  358,  the  declaration  was  so  defective 
that  it  would  not  sustain  a  judgment,  and  it  was  held  that  the  objec- 
tion might  be  taken  on  error.  That  was  an  action  of  debt  on  a 
supposed  statutory  liability,  and  the  statute  had  been  repealed. 
It  was  held  sufficient  ground  for  the  reversal  that  the  declaration 
showed  no  cause  of  action.  In  People  v.  City  of  Spring  Valley, 
129  111.  169,  there  was  an  information  under  which  the  judgment 
would  be  one  of  ouster  against  the  corporation  for  not  having  been 
legally  organized,  and  the  information  admitted  that  it  was  legally 


CHICAGO   AND    ALTON   RAILROAD    COMPANY   V.    CLAUSEN       503 

organized.  The  information  was  held  so  defective  that  it  could  not 
support  a  judgment,  and  it  was  said  that  such  defect  might  be 
availed  of  on  error  even  after  a  demurrer  to  a  declaration  had  been 
overruled  and  the  defendant  had  pleaded  over.  Such  an  objection 
is  not  waived  by  pleading,  and  a  party  who  has  no  cause  of  action 
cannot  sustain  a  judgment  in  his  favor. 

When  these  rules  are  applied  to  the  declaration  in  this  case,  we 
are  satisfied  that,  although  not  very  well  drawn,  it  is  clearly  suffi- 
cient to  sustain  the  judgment.  So  far  as  its  allegations  that  it 
became  and  was  the  duty  of  the  defendant  to  do  certain  things  are 
concerned,  they  are  mere  conclusions  of  law,  which  are  not  trav- 
ersable. It  is  not  sufficient  in  a  declaration  to  allege  that  it  is  the 
duty  of  the  defendant  to  do  certain  things,  but  the  declaration  must 
state  facts  from  which  the  law  will  raise  the  duty.  Ayers  v.  City  of 
Chicago,  111  111.  406.  The  relative  rights  and  obligations  of 
plaintiff  and  defendant,  as  passenger  and  carrier,  are  matters  of  law, 
and  the  objection  that  the  duty  alleged  as  a  conclusion  of  law 
does  not  harmonize  with  the  fact  averred  as  a  breach  of  the  duty 
does  not  render  the  declaration  insufficient  to  sustain  the  judg- 
ment, if  it  contains  facts  sufficient  to  raise  the  duty  of  which  a 
breach  is  alleged.  It  is  averred  that  the  plaintiff  became  a  pas- 
senger on  the  passenger  train  of  defendant  at  Dwight,  to  be  carried 
from  that  place  to  Gardner,  and  that  while  he,  with  due  care, 
caution  and  diligence,  was  about  to  alight  from  the  train  at  Gard- 
ner, the  defendant  carelessly  and  negligently  caused  the  train  to  be 
violently  and  suddenly  moved  forward,  and  thereby  he  was  thrown 
from  and  off  the  train  to  and  upon  the  wooden  platform  of  defend- 
ant and  thereby  injured;  and  in  different  counts  it  was  alleged 
that  defendant  did  not  stop  the  train  at  Gardner  a  sufficient 
length  of  time  to  receive  and  let  off  passengers,  but  suddenly 
started  the  train,  whereby  plaintiff,  who  was  attempting  to  alight, 
was  thrown  off  and  injured.  Under  the  issue  joined  the  declaration 
was  sufl&cient  after  verdict.  .  .  . 

Judgment  affirmed. 


504  MOTIONS    BASED    ON    THE    PLEADINGS 

BRUCE  V.   BEALL. 
Supreme  Court  of  Tennesse.     1898. 
[Reported  100  Tennessee,  573.] 

The  plaintiff  was  an  employe  of  the  defendants,  and  while 
engaged  in  the  performance  of  a  duty  to  his  employers  was  injured 
by  the  fall  of  a  freight  and  passenger  elevator  in  the  storehouse  of 
the  defendants. 

In  his  declaration,  the  plaintiff  alleged  that  the  elevator  was 
"  so  carelessly  and  negligently  constructed  and  maintained,  that 
the  cables  suspending  it  had  been  thirteen  years  in  use,  and  were 
old  and  rusted,  and  that  the  wooden  guides  attached  were  so  worn 
and  rotten,  and  the  safety  appliance,  intended  to  prevent  a  fall, 
was  so  defective  and  out  of  repair,"  that  while  the  plaintiff  was 
riding  on  it,  and  discharging  a  duty  in  obedience  to  the  orders  of 
his  employers,  the  cables,  together  with  the  safety  catches  and 
other  applicances,  broke,  and  the  elevator  fell  a  distance  of  five 
stories  to  the  basement  floor  beneath,  carrying  plaintiff  with  it,  and 
inflicting  the  injuries  complained  of. 

It  was  further  alleged  that  these  injuries  resulted  from  the  flag- 
rant negligence  of  the  defendants  in  the  construction  and  main- 
tenance of  the  elevator  and  its  appliances.  To  this  declaration,  a 
number  of  pleas  were  put  in,  among  them  being  that  of  not  guilty. 

There  was  a  verdict  of  $12,000  for  the  plaintiff.^ 

Beard,  J.  .  .  .  It  is  said  the  trial  Court  was  in  error  in  overruling 
the  motion  of  defendant  below  in  arrest  of  judgment.  This  motion 
was  rested  on  the  ground  that  the  declaration  did  not  aver  that  the 
plaintiff  did  not  know,  nor  by  the  exercise  of  reasonable  care  could 
have  known,  of  the  defects  in  the  elevator  which  are  alleged  to  have 
produced  the  injuries,  nor  did  it  aver  that  the  defendant  below  had 
superior  knowledge,  or  means  of  knowledge,  of  such  defects. 

It  may  be  conceded  that  this  was  a  lack  in  the  declaration,  which 
would  have  been  fatal  on  motion  in  arrest,  save  for  the  pleas  of  the 
defendant,  which  put  distinctly  in  issue  the  knowledge,  or  want  of 
knowledge,  of  the  plaintiff,  as  well  as  that  of  defendant,  and  thus 
fully  supplied  the  defects  of  the  declaration.  This  is  a  sufficient 
answer  to  this  motion. 

Where  a  declaration  lying  in  debt  is  defective  if  the  defendant 
answers  over  (without  demurrer  or  motion),  tendering  an  issue  of 

1  A  part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  taken  from  a 
former  opinion  in  the  same  case  (99  Tenn.  303).  —  Ed. 


DEAN    V.    ROSS  505 

fact,  and  a  verdict  is  rendered,  a  motion  in  arrest,  on  the  ground 
that  no  cause  of  action  is  shown,  comes  too  late.  Saulsbury  v. 
Alexander,  50  Mo.,  142.  For  if  facts  requisite  to  constitute  a 
cause  of  action  are  necessarily  inferable  from  the  pleadings  taken 
in  their  entirety,  judgment  Avail  not  be  arrested  after  verdict. 
Corpenny  v.  Sedalia,  57  Mo.,  88;  Edmondson  v.  Phillips,  73  Mo., 
57.^  .  .  . 

DEAN  V.   ROSS. 
Supreme  Judicial  Court  of  Massachusetts.     1901. 

[Reported  178  Massachusetts,  397.] 

LoRiNG,  J."  1.  The  defendant's  first  contention  is  that  she  is 
entitled  to  have  judgment  arrested  because  it  is  not  alleged  in  the 
declaration  that  the  plaintiff  owned  or  was  in  possession  of  the 
bonds  which  it  is  alleged  that  the  defendant  converted  to  her  own 
use.  But  such  an  objection  is  taken  too  late;  it  does  not  go  to  the 
jurisdiction  of  the  court.  Commonwealth  v.  Mackay,  177  Mass. 
345.  The  case  of  Carlisle  v.  Weston,  1  Met.  26,  relied  on  by  the 
defendant,  was  decided  before  it  was  provided  by  statute  that  no 
motion  in  arrest  of  judgment  should  be  allowed  unless  it  is  for  a 
cause  which  affects  the  jurisdiction  of  the  court.^     St.  1852,  c.  312, 

1  See  EUiot  v.  Stuart,  15  Me.  160. 

But  the  defect  may  be  taken  advantage  of  on  a  motion  at  the  trial  to  dismiss 
the  complaint.  Scofield  v.  \Miitelegge,  49  N.  Y.  259;  Tooker  v.  Arnoux,  76 
N.  Y.  397.     But  see  Grace  v.  Nesbitt,  109  Mo.  9,  IS  S.  W.  1118. 

A  defect  in  the  pleading  of  one  party  in  omitting  a  necessary  allegation  is 
cured  by  an  express  admission  in  a  subsequent  pleading  of  the  same  party. 
Brooke  v.  Brooke,  1  Sid.  184;  Slack  v.  Lyon,  9  Pick.  (Mass.),  62. 

As  to  whether  a  party  can  supply  an  omission  in  one  pleading  by  an  allega- 
tion in  his  own  subsequent  pleading,  see  Marine  Trust  Company  v.  St.  James 
A.  M.  E.  Church,  85  N.  J.  L.  272,  88  Atl.  1075.  But  see  Kearney  County 
Bank  v.  Zimmerman,  5  Neb.  (Unof.),  556,  99  N.  W.  524. 

Defects  of  form,  which  cannot  be  taken  advantage  of  on  a  general  demurrer, 
cannot,  of  course,  be  taken  advantage  of  on  a  motion  in  arrest  of  judgment. 
Stephen,  Pleading,  Will,  ed.,  *161. 

And  on  a  motion  in  arrest  of  judgment  after  verdict,  even  at  common  law, 
the  successful  party's  pleadings  will  be  construed  liberally  in  his  favor.  Bur- 
gess V.  Brazier,  1  Str.  590;   1  Chitty,  Pleading,  16th  Am.  ed.,  *262. 

Under  the  codes,  objections  to  defects  on  the  face  of  the  complaint,  not  taken 
by  demurrer,  are  waived,  except  the  objections  of  lack  of  jurisdiction  and  of  a 
failure  to  state  facts  showing  a  cause  of  action.  —  Ed. 

^  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — Ed. 

'  This  statute  (now  R.  L.  c.  173,  sec.  118),  provides:  "  A  judgment  shall  not 
be  arrested  for  a  cause  existing  before  the  verdict,  unless  such  cause  affects  the 


506  MOTIONS    BASED    ON    THE    PLEADINGS 

§  22.  Gen.  Sts.  c.  129,  §  79.  Pub.  Sts.  c.  167,  §  82.  Moreover 
in  this  case  the  fact  appeared  in  evidence,  which  did  not  appear  in 
CarUsle  v.  Weston,  namely,  that  the  property  converted  belonged 
to  the  plaintiff;  and  in  addition  to  that,  in  this  case  it  was  assumed 
in  the  charge  of  the  judge  that  the  bonds  were  confessedly  the  prop- 
erty of  the  plaintiff,  and  to  that  statement  the  defendant  made  no 
objection.  .  .  .  Exceptions  overruled. 


HOLLIS   &   another  v.   RICHARDSON. 
Supreme  Judicial  Court  of  Massachusetts.     1859. 
[Reported  13  Gray,  392.] 

Writ  of  error  on  a  judgment  of  the  court  of  common  pleas  in 
an  action  of  contract  brought  by  Gideon  D  Richardson  upon  two 
promissory  notes  made  by  the  plaintiff  in  error,  and  payable  to 
Eliphalet  W.  Richardson,  but  not  purporting  to  be  payable  to 
order. 

In  that  action,  each  count  was  in  this  form:  "  And  the  plaintiff 
says,  the  defendants  made  a  promissory  note,  a  copy  whereof  is 
hereto  annexed,  payable  to  Eliphalet  Wharff  Richardson,  and 
the  plaintiff  is  the  owner  of  said  note,  and  the  defendants  owe  him 
the  amount  of  said  note  and  interest  thereon."  Copies  of  the 
notes  were  annexed  to  the  declaration.  The  defendants  filed  an 
affidavit  of  merits,  but  were  afterwards  defaulted,  and  judgment 
was  rendered  againt  them  for  the  amount  claimed. 

The  error  assigned  was,  that  the  notes  were  not  negotiable, 
and  were  not  made  to  Gideon  D.  Richardson,  and  he  could  main- 
tain no  action  at  law  thereon.     Plea,  in  nulla  est  erratum. 

Shaw,  C.  J.  The  ground  of  this  writ  of  error  is,  that  the  declara- 
tion shows  no  cause  of  action  in  the  plaintiff.  The  judgment 
having  been  rendered  upon  the  default  of  the  defendant,  the  case 
is  not  within  the  provisions  of  the  new  practice  act,  which  prohibit 
the  taking  of  objections  in  arrest  of  judgment  or  by  writ  of  error, 
for  causes  existing  before  verdict,  in  any  case  in  which  a  verdict 
has  been  rendered.     St.  1852,  c.  312,  §§  22,  77. 

It  was  not  a  question  of  the  admission  or  rejection  of  evidence, 
which,  if  not  made  at  the  trial,  cannot  be  taken  afterwards;  because 

jurisdiction  of  the  court.  After  the  defendant  has  appeared  and  answered  to 
the  merits  of  the  action,  no  defect  in  the  writ  or  other  process  by  which  he  has 
been  brought  l:)efore  the  court,  or  in  the  service  thereof,  shall  be  considered  to 
affect  the  jurisdiction  of  the  court."  —  Ed. 


MOLLIS    V.    RICHARDSON  507 

there  was  no  trial.  Nor  did  the  court  below  adjudge  the  sufficiency 
of  the  evidence  to  maintain  the  action;  for,  the  judgment  being  on 
default,  no  evidence  was  laid  before  them. 

Nor  is  it  a  case  within  the  rule  of  the  common  law,  where  a  good 
title,  or  cause  of  action,  imperfectly  set  out  in  the  declaration,  may 
be  cured  by  a  verdict.  The  reason  is,  that  a  verdict  presupposes  a 
trial,  and  the  action  of  the  judge  on  the  matter  of  law;  and  the 
court  therefore,  after  verdict,  wall  presmne  that  the  evidence 
necessary  to  support  the  action  was  required  and  given,  though 
such  good  title  and  legal  cause  of  action  were  not  correctly  stated. 

The  question  is,  whether  there  is  enough  in  the  declaration,  of 
which  the  notes  themselves  are  part,  and  of  course,  part  of  the 
record,  to  sustain  the  judgment.  The  declaration  sets  forth  the 
making  of  a  note  payable  to  a  person  other  than  the  plaintiff,  and 
not  negotiable.  It  then  adds  that  "  the  plaintiff  is  the  owaier  of 
said  note."  But  how  can  he  own  it  ?  Onlj^  as  assignee  in  equity, 
which,  by  law,  does  not  enable  him  to  sue  in  his  own  name. 

It  is  said,  however,  that  there  may  have  been  an  express  promise 
by  the  defendants  to  pay  the  plaintiff.  But  if  that  was  so,  the 
declaration  should  not  have  been  on  the  note,  but  on  the  new  and 
express  promise,  of  which  the  assignment  of  the  note  was  the  con- 
sideration. Mowry  v.  Todd,  12  Mass.  281.  By  the  practice  act, 
although  the  facts  may  be  briefly  stated,  all  the  facts  must  be 
stated  which  are  necessary  to  constitute  the  cause  of  action. 
St.  1852,  c.  312,  §  2,  cl.  3.  This  declaration  does  not  state  the 
facts,  if  they  in  truth  existed,  that  the  notes  had  been  assigned  to 
the  plaintiff,  and  that,  upon  notice  thereof,  the  defendants  had 
made  an  express  promise  to  him  to  pay  them. 

The  plaintiff's  final  averment,  "  that  the  defendants  owe  him 
the  amount  of  said  note,"  is  a  mere  statement  of  a  conclusion  of 
law  from  facts  previously  stated,  and  not  an  allegation  of  a  distinct 
substantive  fact.  Millard  v.  Baldwin,  3  Gray,  484.  If  it  could  be 
treated  as  a  distinct  and  sufficient  averment,  no  other  averment 
would  be  needed  in  any  case.  Judgment  reversed. 


508  MOTIONS    BASED    ON    THE    PLEADINGS 


BUTCHER  V.   METTS. 

District  Court  for  the  City  and  County  of  Phila- 
delphia.    1836. 

[Reported  1  Miles,  233.] 

In  this  case  a  verdict  was  rendered  for  the  plaintiff,  but  judgment 
was  arrested  on  account  of  the  insufficiency  of  the  verdict,  1  Miles, 
153.^  The  plaintiff  then  obtained  a  rule  to  show  cause  why  a 
venire  facias  de  novo  should  not  be  awarded,  the  former  trial  having 
proved  fruitless. 

Meredith,  who  had  been  of  counsel  with  the  defendant,  resisted 
the  award  of  a  new  venire,  and  contended  that  upon  the  arrest  of 
the  judgment  the  action  was  at  an  end;  that  the  defendant  no 
longer  had  a  day  in  court,  and  that  there  was  no  way  in  which  he 
could  be  brought  into  court  but  by  a  new  original. 

/.   N orris,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Jones,  J.  An  arrest  of  judgment  is  in  effect  nothing  more  than 
superseding  a  verdict  for  some  cause  apparent  upon  the  record, 
which  shows  that  the  plaintiff  is  not  entitled  to  the  benefit  of  the 
verdict.  It  is  often  followed  by  a  judgment  for  the  defendant, 
that  he  go  without  day,  but  it  is  not  of  itself  a  judgment  for  the 
defendant.  The  court  may,  after  an  arrest  of  judgment,  award  a 
repleader  or  a  venire  de  novo  without  a  repleader.  Which  of  these 
courses  is  the  proper  one,  depends  upon  the  nature  of  the  defect  for 
which  the  judgment  is  arrested.  If  it  appears  by  the  record  that 
the  plaintiff  has  no  cause  of  action,  the  court  will  give  judgment, 
after  the  arrest  of  judgment  on  the  verdict,  that  the  plaintiff  take 
nothing  by  his  writ,  and  that  the  defendant  go  without  day.  If 
issue  be  joined  upon  an  immaterial  point,  there  being  a  sufficient 
cause  of  action  alleged  in  the  declaration,  the  proper  course  is  to 
award  a  repleader.  If  the  pleadings  be  sufficient  and  the  issue  well 
joined,  but  the  verdict  is  imperfectly  found,  it  is  usual  to  award  a 
venire  de  novo;  and  this  it  is  said  may  be  done  upon  the  motion  of 
the  defendant,  without  a  motion  in  arrest  of  the  judgment. 

The  venire  de  novo  is  an  ancient  proceeding  of  the  common  law. 
It  was  in  use  long  before  the  practice  of  granting  new  trials.  It  fol- 
lows of  course  upon  the  granting  of  a  new  trial;  but  as  a  distinct 
proceeding  it  is  commonly  adopted  after  a  bill  of  exceptions  or  after 

1  See  supra,  p.  425.  —  Ed. 


KITCHENMAN    V.    SKEEL  509 

a  special  verdict  imperfectly  found,  but  always  for  some  cause  appa- 
rent on  the  record,  and  if  granted  when  it  should  not  be,  it  is  error, 
and  the  award  of  it  may  be  reversed. 

A  new  trial,  on  the  other  hand,  is  commonly  granted  after  a 
general  verdict  for  some  cause  not  apparent  on  the  record,  and  it  is 
not  assignable  for  error.  Hambleton  v.  Veere,  2  Saund.  Rep.  1716, 
(n.  1);  Goodtitle  v.  Jones,  7  T.  Rep.  43,  48;  Witham  v.  Lems,  1 
Wils.  Rep.  48,  56;  Com.  Dig.,  tit.  Pleader,  R.  18;  1  Sellon's  Prac- 
tice, ch.  11,  sect.  3,  (C.  D.) ;  Miller  v.  Ralston,  1  Serg.  &  Rawle  309; 
Ebersol  v.  Krug,  5  Binn.  53;  Lessee  of  Pickering  v.  Rutty,  1  Serg.  & 
Rawle  515. 

In  this  case  the  fault  was  in  the  verdict.  Of  course  it  appears 
upon  record.     A  venire  facias  de  novo  is  therefore  proper. 

In  regard  to  the  objection  that  the  defendant  is  no  longer  in  court 
in  this  action,  it  should  be  observed  that  the  j  udgment  was  arrested 
at  this  term,  and  no  judgment  has  been  entered  for  the  defendant. 
He  is  therefore  still  in  court  and  bound  to  take  notice  of  the  further 
proceedings  in  the  cause.  But  if  the  term  had  been  allowed  to 
elapse  after  the  arrest  of  judgment,  and  the  cause  had  not  been 
continued  by  a  curia  adv.  vidt,  according  to  strict  notions  of  prac- 
tice, the  action  would  have  been  discontinued,  and  the  defendant 
without  day  in  court.  Venire  de  novo  aivarded.  ^ 


KITCHENMAN   v.   SKEEL  and  Another,  Executors  of 
NICHOLL,  deceased. 

Exchequer.     1848. 

[Reported  3  Exchequer,  49.] 

Debt.  The  declaration  stated,  that  H.  Nicholl,  since  de- 
ceased, in  his  lifetime  was  indebted  to  the  plaintiff  in  80  I.  for 
wages,  and  for  work  and  labour,  and  for  money  due  upon  an 
account  stated,  which  sum  of  80 1,  was  to  be  paid  by  H.  Nicholl, 
deceased,  to  the  plaintiff,  on  request.  And  also,  that  the  defend- 
ants, as  executors  as  aforesaid,  after  the  death  of  H.  Nicholl,  were 
indebted  to  the  plaintiff  in  80 1,  for  work  and  labour  by  the  plaintiff 
then  done  and  performed  for  the  defendants,  as  executors  as  afore- 
said, and  for  money  found  to  be  due  from  the  defendants,  as  such 

^  But  if  the  defect  is  not  apparent  on  the  face  of  the  verdict,  advantage  can- 
not be  taken  of  it  on  auch  a  motion.  Fuller  ;'.  Chamberlain,  11  Met.  (Mass.), 
503. 

As  to  amendment  of  verdicts  see  supra,  Chapter  VII,  Section  X.  —  Ed. 


510  MOTIONS    BASED    ON    THE    PLEADINGS 

executors  as  aforesaid,  on  divers  accounts  between  the  plaintiff  and 
the  defendants,  as  such  executors,  before  then  stated  between 
them;  and  which  last-mentioned  sum  of  80  L  was  to  be  paid  by  the 
defendants,  as  executors  as  aforesaid,  to  the  plaintiff,  on  request." 
Breach,  non-payment  by  H.  NichoU  in  his  lifetime,  or  by  the 
defendants,  as  executors  as  aforesaid,  since  the  decease  of  H. 
NichoU. 

The  defendants  pleaded  "  never  indebted,"  with  other  pleas. 

The  cause  was  tried  before  Rolfe,  B.,  at  the  London  Sittings  in 
last  Hilary  Term,  and  a  general  verdict  found  for  the  plaintiff  for 
the  debt  and  damages. 

Lush  having  obtained  a  rule  nisi  to  arrest  the  judgment,  on  the 
ground  of  a  misjoinder  of  the  causes  of  action, 

Miller  shewed  cause.  —  The  cases  of  Ashby  v.  Ashby,  7  B.  &  C. 
444,  and  Tugwell  v.  Heyman,  3  Camp.  297,  shew  that,  in  some 
instances,  an  executor  may  be  liable  in  his  representative  character 
on  a  cause  of  action  which  accrued  subsequent  to  the  death  of  his 
testator;  but,  after  the  case  of  Corner  v.  Shew,  3  M.  &  W.  350,  it  is 
conceded  that  a  count  for  work  and  labour  by  the  defendant,  as 
executor,  cannot  be  joined  with  a  count  for  money  found  to  be  due 
on  an  account  stated  with  the  defendant  as  executor.  If,  therefore, 
the  second  count  had  merely  contained  the  claim  for  work  and 
labour,  it  would  not  have  supported  the  verdict;  but  when  that 
claim  is  coupled  with  another,  with  which  the  causes  of  action  in 
the  first  count  can  be  properly  joined,  the  Court  will,  after  verdict, 
presume  that  the  judge  directed  the  jury  to  give,  and  that  the  jury 
have  only  given,  damages  in  respect  of  such  of  the  causes  of  action 
as  were  properly  joined:  Stennel  v.  Hogg,  1  Wms.  Saund.  228,  n.  1. 
The  case  resembles  a  count  in  slander,  containing  words  which  are 
actionable  coupled  with  words  not  actionable,  when  it  will  be 
intended,  after  verdict,  that  the  damages  were  awarded  only  in 
respect  of  the  actionable  part.  At  all  events,  the  Court  will  not 
arrest  the  judgment,  but  only  grant  a  venire  de  novo.  Wherever 
a  bad  count  is  joined  with  a  good  count,  and  general  damages  are 
given,  a  venire  de  novo  may  be  awarded:  Corner  v.  Shew,  4  M.  & 
W.  163;  Leach  v.  Thomas,  2  M.  &  W.  427;  Ayrey  v.  Fearnsides, 
4  M.  &  W.  168.  [Parke,  B.  —  This  is  not  the  case  of  a  bad  count 
and  a  good  count,  but  of  a  misjoinder  of  causes  of  action.  It  is. 
settled,  that  where  there  is  a  misjoinder  of  counts,  and  the  jury 
find  general  damages,  a  venire  de  novo  cannot  be  awarded.  The 
question  here  is,  whether  it  makes  any  difference  that  the  mis- 
joinder is  in  two  parts  of  the  same  count.] 


KITCHENMAN    V.    SKEEL  511 

Lush,  in  support  of  the  rule.  —  This  case  is  distinguishable  from 
that  of  a  single  count  containing  a  good  and  also  a  bad  cause  of 
action.  There,  perhaps,  the  Court  would  presume  that  the  judge 
directed  the  jury  to  find  damages  in  respect  of  the  good  part  only. 
Here  each  count  contains  a  good  cause  of  action,  and  the  j  ury  are 
bound  to  find  on  every  part  of  each.  Corner  v.  Shew,  3  M.  &  W. 
350,  governs  the  present  case.  The  plea  of  non  assumpsit  raises  a 
distinct  issue  on  each  and  every  part  of  the  counts.  [Parke,  B.  — 
In  Doe  d.  Lawrie  v.  Dyeball,  8  B.  &  C.  70,  the  Court  said,  "  It  is  a 
settled  rule,  that  if  the  same  count  contains  two  demands  or  com- 
plaints, for  one  of  which  the  action  lies,  and  not  for  the  other,  all 
the  damages  shall  be  referred  to  the  good  cause  of  action,  although 
it  would  be  otherwise  if  they  were  in  separate  counts."  Therefore, 
if  this  had  been  the  case  of  a  count  in  assumpsit  for  a  cause  of 
action  which  could  not  be  joined  with  another  good  cause  of  action, 
the  judgment  would  not  be  arrested;  but  here  there  are  two  counts, 
both  containing  good  causes  of  action.  A  venire  de  novo  only 
issues  on  a  supposed  misconduct  of  the  jury  in  making  a  defective 
finding.] 

Pollock,  C.  B.  The  rule  must  be  absolute.  We  are  bound  by 
the  case  of  Corner  v.  Shew,  in  which  the  Court  took  time  to  con- 
sider their  judgment.  In  that  case  there  was  a  misjoinder  of 
counts;  and,  the  jury  having  found  general  damages,  the  Court 
arrested  the  judgment.  I  cannot  distinguish  between  the  mis- 
joinder of  several  counts  and  the  case  of  one  count  consisting  of 
several  causes  of  action  which  ought  not  to  have  been  joined. 

Parke,  B.  I  am  of  the  same  opinion.  This  case  is  decided  by 
Corner  v.  Shew.  It  is  a  misjoinder  of  causes  of  action  in  the  same 
count;  and,  according  to  the  authority  of  Corner  v.  Shew,  the 
objection  cannot  be  cured  by  a  venire  de  novo,  since  it  is  a  matter 
in  which  the  jury  are  bound  to  assess  the  damages  on  every  part 
of  the  cause  of  action.  It  is  true,  that,  if  the  jury  had  been  directed 
to  find  for  the  defendant  on  the  second  count,  the  defect  would 
have  been  cured.  So,  likewise,  if  a  nolle  prosequi  had  been  entered 
as  to  that  count;  but  general  damages  having  been  assessed  upon 
the  whole,  the  case  falls  within  the  principle  of  Corner  v.  Shew,  and 
we  have  no  reason  to  doubt  the  propriety  of  that  decision. 

Alderson,  B.  Corner  v.  Shew  determined,  that  where  two 
counts  which  are  good,  but  cannot  be  joined,  are  improperly 
joined,  the  course  is  to  arrest  the  judgment.  Here  the  declaration 
consists  of  two  counts,  each  of  them  good,  but  the  second  containing 
a  cause  of  action  which  cannot  be  joined  either  with  the  other  cause 


512  MOTIONS   BASED    ON    THE    PLEADINGS 

of  action  in  that  count  or  with  the  first  count.  It  is,  in  truth,  the 
same  as  three  counts,  one  of  which  cannot  be  joined  with  the  other 
two. 

RoLFE,  B.  There  never  can  be  a  venire  de  novo,  except  where 
the  jury  must  find  differently,  in  order  to  make  the  record  con- 
sistent. It  is  true,  that,  if  the  jury  had  found  for  the  defendant  on 
the  second  count,  the  objection  might  have  been  cured;  but  then 
they  were  of  opinion  that  the  plaintiff  had  made  out  his  case  upon 
the  whole  declaration,  and  they  were  bound  to  find  accordingly. 

Rule  absolute} 


POSNETT  V.   MARBLE. 

Supreme  Court  of  Vermont.     1889. 

[Reported  62  Vermont,  481.] 

This  was  an  action  for  slander,  the  declaration  containing  five 
counts.  Plea,  the  general  issue  with  notice  of  special  matter  in 
justification.  Trial  by  jury.  Verdict  for  the  plaintiff.  The 
defendant  moved  in  arrest  of  judgment  for  the  insufficiency  of  the 
declaration.     Judgment  for  the  plaintiff. 

MuNSON,  J."  .  .  .  The  several  counts  purport  to  be  for  words 
spoken  upon  different  occasions.  A  general  verdict  was  rendered 
upon  all  the  counts.  The  second,  third  and  fifth  counts  are  held  to 
be  insufficient,  and  the  court  has  no  means  of  determining  upon 
which  counts  the  damages  were  in  fact  assessed. 

^  If  the  jury  find  for  the  plaintiff  on  one  of  two  counts  improperly  joined 
and  for  the  defendant  on  the  other,  the  judgment  will  not  be  arrested.  Kightly 
V.  Birch,  2  M.  &  S.  533;  Sellick  v.  Hall,  47  Conn.  260. 

And  where  the  jury  find  for  the  plaintiff  on  two  counts  improperly  joined 
but  assess  the  damages  separately,  judgment  will  be  arrested  only  on  one  of  the 
counts.     Hancock  v.  Haywood,  3  T.  R.  433. 

As  to  amending  the  verdict  in  case  of  misjoinder  of  counts,  see  Eddowes  v. 
Hopkins,  1  Doug.  376;  Lusk  v.  Hastings,  19  Wend.  (N.  Y.),  627.  See  also 
a  note  to  2  Wms.  Saund.  (Sir  E.  V.  Wms.  ed.)  p.  493. 

See  1  Chitty,  Pleading,  16th  Am.  ed.,  *  228. 

Under  the  codes,  the  objection  of  misjoinder  of  causes  of  action,  if  not  taken 
by  demurrer  or  answer  is  waived.  "  When,  on  the  face  of  a  petition,  no  ground 
of  demurrer  appears,  the  objection  may  be  taken  by  answer.  If  the  objection 
is  not  made  in  either  way,  the  defendant  shall  be  deemed  to  have  waived  it, 
except  only  that  the  court  has  no  jurisdiction  of  the  subject  of  the  action  and 
that  the  petition  does  not  state  facts  which  show  a  cause  of  action."'  Ohio 
Gen.  Code,  sec.  11311.  —  Ed. 

2  The  statement  of  facts  is  abridged  and  a  part  of  the  opinion  is  omitted. — Ed. 


POSNETT   V.    MARBLE  513 

This  being  the  situation,  what  disposition  shall  be  made  of  the 
case  ?  The  courts  are  not  agreed  as  to  the  procedure.  One  course 
is  to  end  the  suit  by  arresting  the  judgment.  Another  course  is  to 
award  a  venire  de  novo.  In  Haselton  v.  Weare,  8  Vt.  480,  the  court 
arrested  the  judgment,  saying  that  this  was  in  accordance  with  the 
settled  rule  in  England.  The  court  had  before  it  English  cases  in 
which  this  course  had  been  taken,  but  the  English  practice  up  to 
that  time  was  far  from  uniform,  and  the  other  method  has  since 
prevailed.  One  of  the  cases  relied  upon  by  the  court  in  Haselton 
V.  Weare,  was  Holt  v.  Scholefield,  6  T.  R.  691.  But  this  case  was 
expressly  overruled  by  Leach  v.  Thomas,  2  M.  &  W.  427,  soon  after 
Haselton  v.  Weare  was  decided.  In  Leach  v.  Thomas,  it  was  said 
that  this  point  did  not  appear  to  have  been  at  all  argued  in  Holt  v. 
Scholefield;  and  in  Corner  v.  Shew,  4  M.  &  W.  162,  Parke,  B.,  in 
stating  that  the  point  had  been  considered  doubtful  before  the 
decision  of  Leach  v.  Thomas,  expressed  surprise  that  such  a  doubt 
should  have  existed,  inasmuch  as  the  matter  had  been  provided 
for  by  rules  of  court  in  both  the  King's  Bench  and  the  Common 
Pleas  as  early  as  1654.  In  Empson  v.  Griffin,  11  Ad.  &  E.  186,  the 
court  of  Queen's  Bench  followed  the  decision  in  Leach  v.  Thomas, 
and  awarded  a  venire  de  novo. 

The  rule  adopted  in  Haselton  v.  Weare  has  never  been  cordially 
approved.  In  Wood  v.  Scott,  13  Vt.  42,  the  court  considered  the 
question  settled,  but  Redfield,  J.,  referred  with  evident  sympathy 
to  the  regret  expressed  by  Lord  Mansfield  in  Peake  v.  Oldham, 
Cowp.  275,  that  such  a  rule  had  been  estabhshed.  In  Camp  v. 
Barker,  21  Vt.  469,  and  in  Whitcomb  v.  Wolcutt,  21  Vt.  368,  the 
court  vigorously  criticised  the  rule,  and  indicated  its  intention  to 
make  all  reasonable  intenchnents  in  favor  of  a  verdict  when  some 
of  the  counts  were  good.  In  the  latter  case,  the  court  referred  to 
the  modern  English  practice  of  awarding  a  venire  de  novo  where  it 
could  be  done,  as  the  true  course,  but  considered  that  this  could  not 
well  be  done  in  a  court  of  error.  In  Joy  v.  Hill,  36  Vt.  333,  the 
motion  in  arrest  was  disposed  of  on  the  ground  of  a  misjoinder  of 
counts,  the  question  whether  the  expressions  in  more  recent  cases 
had  abrogated  the  law  as  declared  in  Wood  v.  Scott  being  recog- 
nized but  not  considered.  In  1865  the  difficulty  was  removed  by 
statute  as  far  as  declarations  containing  only  counts  for  the  same 
cause  of  action  are  concerned.  R.  L.  913.  In  Dunham  v.  Powers, 
42  Vt.  1,  and  in  Kimmis  v.  Stiles,  44  Vt.  351,  decided  since  this 
enactment,  the  counts  not  being  for  the  same  cause  of  action,  it  was 
considered  that  judgment  should  be  arrested. 


514  MOTIONS    BASED    ON    THE    PLEADINGS 

In  view  of  the  misapprehension  under  which  the  rule  was  adopted, 
the  position  afterwards  taken  in  regard  to  it,  and  the  modern 
vindication  in  the  Enghsh  courts  of  the  earUer  and  better  practice, 
we  are  incHned  to  extend  the  benefit  of  a  new  trial  to  cases  hke  this. 
Upon  a  mistrial  of  this  character,  we  think  the  law  may  con- 
veniently and  properly  give  the  litigants  a  more  substantial  justice 
than  is  afforded  by  an  arrest  of  judgment.  That  the  proposed 
action  may  properly  be  taken  by  this  court  is  apparent  from  the 
settled  practice  of  many  courts  of  error.  The  nature  of  the  pro- 
ceeding is  fully  stated  in  Corner  v.  Shew,  above  cited.  The  theory 
is  that  the  defect  is  in  the  verdict.  The  order  is  made,  in  the 
language  of  the  ancient  rule,  "  as  upon  an  ill  verdict."  By  sending 
back  the  case  an  opportunity  is  given  to  have  the  damages  as- 
sessed upon  the  good  counts  only.  The  plaintiff  will  also  be  en- 
titled to  the  usual  privileges  of  amendment  under  the  rules  of  the 
trial  court. 

Judgment  reversed.  New  trial  granted  on  condition  that  plaintiff 
pay  defendant's  costs  heretofore  incurred  in  the  court  below,  and  take 
no  costs  for  that  time  in  the  event  of  a  final  recovery;  and  if  a  new  trial 
is  not  desired  upon  these  terms,  plaintiff  to  become  non-suit.  Cause 
remanded.^ 

1  In  Dean  v.  Cass,  73  Vt.  314,  50  Atl.  1085,  the  court  granted  a  venire  de 
novo  for  misjoinder  of  causes  of  action;  and  in  Baker  v.  Sherman,  73  Vt.  26, 
50  Atl.  633,  supra  p.  495,  the  court  granted  a  venire  de  novo  for  a  defect  in  the 
declaration.      But  these  cases  are  opposed  to  the  common  law  rule. 

If  the  jury  find  separately  on  the  several  counts,  the  plaintiff  is  entitled  to 
judgment  on  the  good  counts. 

And  in  a  criminal  action,  a  general  verdict  of  guilty  is  construed  to  be  a 
verdict  of  guilty  on  each  count  of  the  indictment.  See  State  v.  Huggins,  84 
N.  J.  L.  254,  87  Atl.  630.     Compare  Lewis  v.  Niles,  1  Root  (Conn.),  433. 

If  several  causes  of  action,  some  of  which  are  defective,  are  stated  in  the 
same  count,  and  the  jury  find  for  the  plaintiff  with  general  damages,  the 
plaintiff  is  entitled  to  judgment  on  the  verdict,  because  it  will  be  presumed 
that  the  judge  directed  the  jury  to  disregard  the  defective  allegations.  See 
1  Chitty,  Pleading,  16th  Am.  ed.,  *714.  Compare  Hagar  v.  Norton,  188 
Mass.  47,  73  N.  E.  1073. 

If  there  are  several  counts  all  for  the  same  cause  of  action,  and  a 
general  verdict  for  the  plaintiff,  the  general  verdict  may  be  applied  to  the 
good  count,  and  judgment  entered  thereon.  Smith  v.  Cleveland,  6  Met. 
(Mass.),  332;  Aldrich  v.  Lyman,  6  R.  I.  98.  See  1  Chitty,  Pleading,  16th  Am. 
ed.,  *714. 

So,  too,  the  verdict  may  be  amended  where  the  evidence  was  directed  wholly 
to  the  good  count.  Williams  v.  Breedon,  1  B.  &  P.  329;  Stafford  v.  Green,  1 
Johns.  (N.  Y.),  505;  Norris  v.  Durham,  9  Cow.  (N.  Y.),  151. 

The  rule  is  the  same  where  the  jury  was  instructed  that  the  plaintiff  was  not 


STREITWEISER    V.    LIGHTBOURN  515 

Section  II. 
Motion  for  Judgment  before  or  notwithstanding  the  Verdict. 

CRAVEN  V.   HANLEY. 
Common  Pleas.     1738. 

[Reported  Barnes's  Notes,  184.] 

This  was  an  action  of  trespass,  whereto  defendant  pleaded  a  bad 
justification.  Plaintiff  took  issue,  and  defendant  obtained  a  ver- 
dict. Plaintiff  moved  in  arrest  of  judgment,  and  the  court  heard 
counsel  on  both  sides  several  times,  and  took  time  to  consider;  and 
in  Easter  term  last  made  a  rule  to  stay  the  entry  of  judgment  on 
defendant's  verdict,  and  that  plaintiff  should  have  leave  to  sign 
judgment,  the  trespass  being  confessed  by  the  plea.^  .  .  . 


STREITWEISER  v.   LIGHTBOURN. 
Supreme  Court  of  Errors  of  Connecticut.     1913. 

[Reported  87  Connecticut,  527.] 

Action  to  recover  damages  for  personal  injuries  alleged  to  have 
been  caused  by  the  defendant's  negligence  in  running  his  auto- 
mobile into  and  over  the  plaintiff,  brought  to  the  Superior  Court  in 
New  Haven  County  and  tried  to  the  jury  before  Gager,  J.;  verdict 
and  judgment  for  the  plaintiff  for  $700,  and  appeal  by  the  defend- 
ant.    No  error. 

Per  Curiam.  The  evidence  in  this  case  is  such  that  the  issues 
as  to  the  defendant's  negligence  and  the  plaintiff's  lack  of  contrib- 
utory negligence  were  properly  submitted  to  the  jury,  and  from  it 

entitled  to  recover  on  the  defective  count.  Richmond  v.  Whittlesey,  2  Allen 
(Mass.),  230.     See  also  Morrin  v.  Manning,  205  Mass.  205,  91  N.  E.  308. 

By  statute  in  many  jurisdictions  it  is  provided  that  whenever  an  entire 
verdict  shall  be  given  on  several  counts,  it  shall  not  be  set  aside  or  reversed  on 
the  ground  of  any  defective  count,  if  one  or  more  of  the  counts  in  the  declara- 
tion shall  be  sufficient  to  sustain  the  verdict.  Bond  v.  Dustin,  112  U.  S.  604, 
28  L.  ed.  835,  5  S.  Ct.  296  (Illinois  law);  Bishop  v.  Williamson,  11  Me.  495.  — 
Ed. 

^  At  common  law  the  plaintiff  was  entitled  to  judgment  non  obstante 
verdicto  originally  only  if  the  defendant  interposed  an  insufficient  affirmative 
plea  expressly  confessing  the  allegations  in  the  plaintiff's  declaration.  As 
to  how  far  this  rule  was  subsequently  relaxed,  see  Ames,  Cases  on  Pleading,  ed. 
of  1905,  265.  —  Eo. 


516  MOTIONS    BASED    ON    THE    PLEADINGS 

the  jury  might  reasonably  have  found  in  favor  of  the  plaintiff  upon 
both  issues.  The  court  did  not  err  in  so  holding,  and  in  refusing 
to  set  aside  the  verdict. 

The  defendant's  motion  for  a  judgment  notwithstanding  the 
verdict  was  entirely  inappropriate  to  the  situation  before  the  court. 
Such  a  judgment  is  not  rendered  upon  the  evidence,  but  upon  the 
admissions  of  the  pleadings. ^  The  judgment  is  in  its  essence  one  by 
confession.  The  defendant's  pleadings  consisted  solely  of  denials 
of  the  allegations  of  the  complaint.  Of  necessity,  therefore,  there 
are  no  uncontroverted  allegations  entitling  him  to  a  judgment,  even 
if  it  be  assumed  that  such  a  judgment  may  be  rendered  in  favor  of  a 
defendant  upon  the  plaintiff's  cause  of  action,  as  at  common  law 
it  could  not  be.  1  Swift's  Digest,  s.  p.  779;  Stephen  on  Pleading, 
s.  p.  98;  Schermerhorn  v.  Schermerhorn,  5  Wend.  (N.  Y.)  513,  514; 
Smith  V.  Powers,  15  N.  H.  546,  562;  11  Ency.  of  Pleading  & 
Practice,  912,  913. 

There  is  no  error. "^ 


HUMBOLDT  MIN.   CO.   v.   AMERICAN   MANUFAC- 
TURING,   MINING   &   MILLING   CO.  et  al. 

Circuit  Court  of  Appeals  of  the  United  States, 
Sixth  Circuit.     1894. 

[Reported  62  Federal,  356.1 

This  was  a  suit  by  the  Humboldt  Mining  Company  against  the 
American  Manufacturing  Mining  &  Milling  Company  and  the 
Variety  Iron-Works  Company  for  breach  of  contract.  The  iron- 
works company  filed  an  answer  to  which  the  plaintiff  filed  a  reply. 

After  the  pleadings  were  completed,  the  iron-works  company 
made  a  motion  that  on  the  pleadings  judgment  be  entered  in  its 
favor.  The  court  granted  the  motion,  and  accordingly  entered  the 
judgment  which  it  is  now  sought  to  review  by  this  writ  of  error. 

Before  Taft  and  Lurton,  Circuit  Judges,  and  Barr,  District 
Judge. 

1  By  statute  in  some  jurisdictions  the  trial  court  may  on  motion  enter 
judgment  notwithstanding  the  verdict,  where  at  the  trial  a  motion  to  direct  a 
verdict  was  improperly  denied.     See  supra,  p.  492.  —  Ed. 

2  Although  it  was  generally  held  at  common  law  that  the  defendant  was  not 
entitled  to  judgment  non  obstante  veredicto,  the  court  might  arrest  the  judgment 
on  a  motion  for  judgment  n.  o.  v.  Schermerhorn  v.  Schermerhorn,  5  Wend, 
(N.  Y.),  513;  Trow  v.  Thomas,  70  Vt.  580,  41  Atl.  652.  —  Ed. 


MURPHY   V.    RUSSELL  517 

Taft,  Circuit  Judge. ^  .  .  . 

Section  5328  of  the  Revised  Statutes  provides  that : 

"  When,  upon  the  statement  in  the  pleadings,  one  party  is  entitled  by 
law  to  judgment  in  his  favor,  judgment  shall  be  so  rendered  by  the  court, 
although  a  verdict  has  been  found  against  such  party." 

It  was  in  accordance  with  this  section  that  the  court  below 
entered  the  judgment  here  complained  of.  The  contention  on  be- 
half of  the  plaintiff  is  that  this  section  applies  only  after  a  verdict 
has  been  rendered,  and  that  until  then  the  court  has  no  power  to 
enter  judgment.  There  is  no  such  limitation  in  the  words  of  the 
section,  and  it  would  seem  to  be  absurd  that  when,  upon  the  state- 
ments of  the  parties  to  the  pleadings,  one  or  the  other  is  entitled 
to  judgment,  the  court  should  go  through  the  useless  ceremony 
of  submitting  to  a  jury  immaterial  issues  in  order  to  enter  judgment 
upon  the  pleadings  without  regard  to  the  verdict.  .  .  . 

The  judgment  of  the  circuit  court  is  affirmed,  with  costs} 


MURPHY  V.   RUSSELL  &   others. 

Supreme  Judicial  Court  of  Massachusetts.     1909. 

[Reported  202  Massachusetts,  480.] 

Tort,  for  personal  injuries  received  by  the  plaintiff  while  in  the 
employ  of  two  of  the  defendants,  Merrill  and  Emerson,  from  falling 
down  an  elevator  shaft  in  a  building  owned  by  Russell,  the  other 
defendant.     Writ  dated  January  16,  1907. 

The  case  was  tried  before  Hitchcock,  J.  A  verdict  was  ordered 
for  the  defendants  under  the  circumstances  stated  in  the  opinion; 
and  the  plaintiff  alleged  exceptions. 

The  case  was  submitted  on  briefs.  .  .  . 

LoRiNG,  J.^  At  the  close  of  the  evidence  in  this  case  the  defend- 
ant Russell  and  the  defendants  Merrill  and  Emerson  asked  the 
judge  to  rule  that  on  the  pleadings  and  the  evidence  the  plaintiff 
was  not  entitled  to  recover.  The  judge  granted  the  request  and 
ordered  a  verdict  for  the  defendants.  .  . 

The  objection  that  the  facts  alleged  in  the  declaration  do  not 
entitle  the  plaintiff  to  judgment  can  be  raised  by  asking  that  a  ver- 

'  The  statement  of  facts  is  abridged,  and  a  part  of  the  opinion  in  which  the 
defendant's  plea  is  examined  and  held  sufficient  is  omitted.  —  Ed. 
2  See  Kime  v.  Jesse,  52  Neb.  606,  72  N.  W.  1050.  —Ed. 
'  A  part  of  the  opinion  is  omitted.  —  Ed. 


518  MOTIONS   BASED    ON    THE    PLEADINGS 

diet  be  ordered  for  the  defendant  as  well  as  by  demurrer.  Hervey 
V.  Moseley,  7  Gray,  479.  Hubbard  v.  Mosely,  11  Gray,  170. 
Nowlan  v.  Cain,  3  Allen,  261,  263.  Oliver  v.  Colonial  Gold  Co.,  11 
Allen,  283.  Oulighan  v.  Butler,  189  Mass.  287,  289.  See  also 
Tracey  v.  Grant,  137  Mass.  181.  This  practice  presumably  grows 
out  of  the  rule  introduced  in  the  practice  acts  of  1851  and  1852 
(now  R.  L.  c.  173,  §  118),  that  judgment  shall  not  be  arrested  for  a 
cause  existing  before  verdict  unless  the  cause  affects  the  jurisdiction 
of  the  court.  .  .  .  Exceptions  overruled.  ^ 

*  In  some  jurisdictions  the  defendant  may  inove  orally  at  the  trial  to  dismiss 
the  action  on  the  ground  of  want  of  jurisdiction  or  of  failure  to  state  a  cause  of 
action.  Tooker  v.  Arnoux,  76  N.  Y.  397.  But  see  Littlefield  v.  Railroad  Co., 
104  Me.  126,  71  Atl.  657. 

In  some  jurisdictions  the  defendant  may  move  to  exclude  all  evidence  under 
the  declaration  when  it  shows  a  want  of  jurisdiction  or  fails  to  state  a  cause  of 
action.     Rothe  v.  Rothe,  31  Wis.  570.  —  Ed. 


CHAPTER   X. 

JUDGMENTS. 

Section  I. 
Form  and  Validity. 

[Form  of  Entry  of  Judgment  for  Plaintiff  on  a  Verdict.]  * 

In  the  Queen's  Bench. 

The  day  of  ,  in  the  year  of 

our  Lord  18 {date  of  declaration.) 

Berks  to  wit.    A.  B.  by  E.  F.  his  attorney  complains  of  C.  D.,\vho 
has  been  summoned  to  answer  the  said  A.  B.  by  virtue  of  a  writ 

issued  on  the day  of ,  in  the  year  of  our  Lord  18 ,  out  of 

the  court  of  our  lady  the  queen,  before  the  queen  herself  at  West- 
minster. For  that  (&c.  Coyy  the  declaration  from  these  words  to 
the  end,  and  the  plea  and  subsequent  'pleadings,  to  the  joinder  of  issue). 
Thereupon  the  sheriff  is  coEomanded  that  he  cause  to  come  here, 
forthwith,  twelve  &c.,  by  whom  &c.  and  who  neither  &c.,  to  recog- 
nize &c.,  because  as  well  &c.^     Afterwards,  the  jury  between  the 

parties  is  respited  until  the day  of {return  of  distringas 

or  habeas  corpora,)  unless  her  majesty's  justices  assigned  to  take  the 

assizes  in  and  for  the  county  of  Berks  shall  first  come,  on  the  

day  of {day  of  nisi  prius,)  in  the  said  county,  according  to  the 

form  of  the  statute  in  such  case  made  and  provided,  for  default  of 
the  jurors,  because  none  of  them  did  appear.     Afterwards,  on  the 

day  of {day  of  signing  final  judgment,)  come  the  parties 

aforesaid  by  their  respective  attornies  aforesaid;  and  the  said 
justices  of  assize,  before  whom  the  said  issue  was  tried,  have  sent 
hither  their  record  had  before  them  in  these  words:  Afterwards, 
that  is  to  say,  on  the  day  and  at  the  place  within  contained,  before 

sir ,  knight,  one  of  the  justices  of  our  lady  the  queen 

assigned  to  hold  pleas  before  the  queen  herself,  and  sir , 

knight,  one  of  the  justices  of  our  lady  the  queen,  assigned  to  take 
the  assizes  in  and  for  the  county  of  Berks,  according  to  the  form  of 

1  See  Chitty,  Forms,  6th  ed.  (1847),  pp.  45,  95,  106.  —  Ed. 
^  The  full  statement  of  the  words  omitted  may  be  found  in  3  Bl.  Com.,  App. 
X.  —  Ed. 

519 


520  JUDGMENTS 

the  statute  in  such  case  made  and  provided,  come  as  well  the  within- 
named  plaintiff  as  the  within-named  defendant,  by  their  respective 
attornies  within  mentioned;  and  the  jurors  of  the  jury,  whereof 
mention  is  within  made,  being  summoned  also  come,  who,  to  speak 
the  truth  of  the  matters  within  contained,  being  chosen,  tried  and 
sworn,  according  to  the  form  of  the  statute  in  such  case  made  and 
provided,  say  upon  their  oath  that  the  defendant  did  promise,  in 
manner  and  form  as  the  plaintiff  hath  within  complained  against 
him;  and  they  assess  the  damages  of  the  plaintiff,  on  occasion  of 
the  not  performing  the  promises  within  mentioned,  over  and  above 
his  costs  and  charges  by  him  about  his  suit  in  this  behalf  expended 

to    £ ,  and    for   those  costs  and  charges  to   forty   shillings. 

Therefore,  it  is  considered  that  the  said  A.  B.  do  recover  against 
the  said  C.  D.  his  said  damages,  costs  and  charges  by  the  jurors 

aforesaid  in  form  aforesaid  assessed;  and  also  £ for  his  costs 

and  charges  by  the  court  here  adjudged  of  increase  to  the  said 
A.  B.  with  his  assent,  which  said  damages,  cost  and  charges,  in  the 
whole,  amount  to  £ ;  and  the  said  C.  D.  in  mercy,  &c. 

[New  Jersey  Judgment  Record.]  ^ 

In  the  Supreme  Court  of  New  Jersey. 
A.B.I 

vs.      \  Judgment  Record. 
C.  D.  J 

C.  D.,  the  defendant  in  this  cause,  was  summoned  to  answer 
unto  A.  B.,  the  plaintiff  therein,  in  an  action  at  law  upon  the  follow- 
ing complaint:   {Copy  comylaint) . 

The  defendant  answered  as  follows :  {Copy  the  answer  and  further 
pleadings,  if  any). 

This  action  was  tried  before  Justice  M.  N.  with  {or  without)  a 
jury,  at  the Circuit,  on  December  10,  1911. 

The  cause  having  been  heard  and  submitted  to  the  jury,  they 
return  their  verdict  as  follows:   {Copy  verdict,  general  or  special). 

Whereupon  it  is  adjudged  that  the  plaintiff  recover  of  the  defend- 
ant the  sum  of dollars  (S     )  and  his  costs,  which  are  taxed  at 

the  sum  of dollars  (S ),  making  in  the  whole  the  sum  of 

dollars  ($     ). 

Judgment  entered  December ,  1911. 

1  See  New  Jersey  Practice  Act,  1912,  Schedule  B  (Pamph.  L.  1912,  pp.  408, 
409).  —  Ed. 


CHURCH   V.    GROSSMAN  521 

[Modern  English  Form  of  Judgment.]  ^ 

19 — .     [Here  put  the  letter  and  number.] 
In  the  High  Court  of  Justice, 

Division. 

Between  A.  B.,  Plaintiff, 

and 
CD.,  Defendant. 

30th  November,  19 

The  action  having  on  the  12th  and  13th  November,  19 been 

tried  before  the  Honourable  Mr.  Justice with  a  special  jury  of 

the  county  of ,  and  the  jury  having  found  [state  findings],  and 

the  said  Mr.  Justice  having  ordered  that  judgment  be  en- 
tered for  the  plaintiff  for  £  and  costs:  Therefore  it  is  ad- 
judged that  the  plaintiff  recover  against  the  defendant  £ and 

£ for  his  costs. 

[Arkansas  Judgment.]  ^ 

Richard  Roe,  plaintiff,  1 

against  >  Judgment. 

John  Doe,  defendant.     J 

The  parties  appeared  by  their  attorneys,  and  the  defendant  filed 
a  demurrer  to  the  complaint,  and  the  questions  of  law  arising 
thereon  being  heard,  it  is  adjudged  by  the  court  that  the  complaint 
is  insufficient,  and  the  plaintiff  refusing  to  plead  further,  it  is 
ordered,  considered  and  adjudged  by  the  court  that  the  complaint 
be  dismissed  and  that  the  defendant  recover  of  the  plaintiff  his 
costs  herein  expended. 


CHURCH  v:   CROSSMAN. 

Supreme  Court  of  Iowa.     1875. 

[Reported  41  Iowa,  373.] 

This  action  is  brought  upon  a  judgment  of  a  justice  of  the  peace 
in  St.  Lawrence  County,  New  York.  The  court  sustained  a 
demurrer  to  the  petition,  and  the  plaintiff  refusing  to  amend, 
judgment  for  costs  was  rendered  for  the  defendant.  Plaintiff 
appeals.     The  further  facts  appear  in  the  opinion. 

'  See  Rules  of  the  Supreme  Court,  1883,  Appendix  F  (Annual  Practice, 
1915,  p.  1497).  — Ed. 

*  See  Kirby,  Digest  of  the  Statutes  of  Arkansas,  p.  1663.  —  Ed. 


522  JUDGMENTS 

Miller,  Ch.  J.     The  transcript  of  the  judgment  sued  on  is  as 
follows : 

"  State  of  New  York,  St.  Lawrence  Co.,  town  of  Gouverneur. 
In  Justice's  Court,  before  J.  B.  Preston,  Esq.,  J.  P. 

February,  16th,  1874. 

Judgment  rendered  in  favor  of 

plaintiff  against  defendant  on 

the  above  cause  on  contract 

on  process  personally  served. 


Daniel   Church, 

against 

Henry  C.   Crossman 


Debt $200.00. 

Costs 2.40. 


Judgment $202.40. 

St.  Lawrence  County,  ss. 

I  certify  that  the  above  is  a  true  copy  of  a  judgment  rendered  by 
and  before  me,  and  now  remaining  unsatisfied  upon  my  docket. 
Witness  my  hand  this  11th  day  of  April,  1874. 

J.  B.  Preston, 

Justice  of  the  Peace." 

This  judgment  was  duly  authenticated  by  the  clerk  of  the  Su- 
preme Court  of  the  county,  but  as  no  question  is  made  upon  the 
authentication,  the  certificate  is  omitted  from  this  opinion.  The 
court  sustained  the  demurrer  on  two  grounds,  as  follows: 

"1.  The  transcript  does  not  show  that  any  judgment  was  ever 
rendered  by  any  court." 

"  2.  The  transcript  does  not  show  the  findings  or  adjudication 
of  the  court  in  said  case." 

It  is  settled  by  the  decisions  of  this  court,  that  no  particular  form 
of  words  is  necessary  to  show  the  rendition  of  a  judgment.  See 
Barrett  v.  Garragan,  16  Iowa,  47,  and  cases  cited  in  the  opinion. 
Where  the  time,  place,  parties,  matters  in  dispute,  and  an  adjudica- 
tion thereon  appear  it  is  sufficient.     Ibid. 

In  the  transcript  before  us  we  have  the  time,  place,  parties, 
matter  in  dispute  and  the  result,  concisely  and  clearly  stated.  It 
is  stated  that  "  judgment  is  rendered  for  the  plaintiff  against  the 
defendant  ";  that  such  judgment  is  in  the  cause  entitled  "  Daniel 
Church  V.  Henry  C.  Crossman";  that  the  judgment  is  rendered 
"  on  contract  ";  that  such  judgment  was  rendered  upon  "  process 
personally  served,"  and  the  amount  of  the  judgment  is  clearly 
stated.      The  case  is  clearly  within  the  cases  above  cited.     The 


AVERY    &    ENSIGN   V.    BABCOCK  523 

transcript  shows  all  the  requisites  of  a  valid  judgment  as  clearly  as 
in  Barrett  v.  Garragan,  supra,  or  in  Somers  v.  Milledge  et  at.,  1 
Iowa,  150,  in  both  of  which  the  court  held  the  judgments  sued  on 
to  be  sufficient. 

The  court  below  erred,  therefore,  in  sustaining  the  demurrer  and 
its  judgment  must  be  Reversed} 


AVERY  &  ENSIGN  v.   BABCOCK. 

Supreme  Court  of  Illinois.     1864. 

[Reported  35  Illinois,  175.] 

Walker,  C.  J.^  This  was  a  motion  to  quash  an  execution,  and 
set  aside  a  sale  made  under  it.  The  judgment  was  originally 
rendered  by  a  police  magistrate  in  the  city  of  Galesburgh.  An 
execution  was  issued  and  returned  no  property  found.  Afterwards 
a  transcript  of  this  judgment  was  filed  in  the  office  of  the  circuit 
clerk  of  Knox  county,  upon  which  the  clerk  issued  an  execution 
upon  which  the  sale  was  made.  The  transcript  of  the  police  mag- 
istrate contains  this  entry:  "  On  day  of  trial,  suit  called,  defendant 
appeared  and  acknowledged  the  above  amount  correct;  judgment 
is  therefore  rendered  by  confession  against  H.  B.  Avery  &  G.  D. 
Ensign  for  the  sum  of  383.18  debt  and  2.39  costs."  The  caption  to 
this  judgment  states  the  demand  to  be  "  383.18  "  and  is  manifestly 
what  was  referred  to  in  the  judgment,  as  the  "  above  amount." 
On  the  hearing  the  motion  was  overruled  and  exceptions  were 
taken. 

The  ground  relied  upon  for  a  reversal  is,  that  the  judgment  is 
indefinite  and  uncertain.  There  is  no  word,  mark  or  character, 
which,  in  any  manner,  indicates  for  what  the  judgment  is  rendered. 
It  is  true  that  there  are  the  figures  "  383.18,"  but  whether  they  are 
intended  to  represent  that  number  of  American,  English  or  Ger- 
man coins,  we  are  left  entirely  to  conjecture.  Nor  is  anything 
found  in  the  record  from  which  it  can  be  certainly  inferred.  It 
may  be  said,  that  indebtedness  is  usually  for  dollars  and  decimal 
fractions  of  a  dollar,  but  we  know  it  is  not  of  unfrequent  occurrence 
that  agreements  are  made  for  sums  in  other  coins,  especially  when 
made  in  other  countries.     The  decisions  of  this  court  are  uniform, 

1  See  1  Black,  Judgments,  2d  ed.,  sees.  114,  115;  1  Freeman,  Judgments, 
4th  ed.,  sees.  46-55.  —  Ed. 

^  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 


524  JUDGMENTS 

that  in  a  judgment  for  money  the  sum  must  be  specified  in  words  or 
figures  with  some  mark  or  character  designating  the  precise  sum. 
Lawrence  v.  Fast,  20  111.  338;  Lane  v.  Bommelmann,  21  111.  143; 
Eppinger  v.  Kirby,  23  111.  521;  Dukes  v.  Rowley,  24  111.  211; 
Bailey  v.  Doolittle,  id.  577.  This  case  falls  clearly  within  the  rule 
announced  in  these  cases,  and  no  reason  is  perceived  why  it  should 
not  be  governed  by  it.  .  .  .  Judgment  reversed} 


BETTS   V.   BUTLER  e^aL 
Supreme  Court  of  Idaho  Territory.     1868. 
IReported  1  IdaJio,  185.] 

Cummins,  J.^  The  plaintiff  in  his  complaint  demands  judgment 
for  the  sum  of  four  hundred  and  twenty  dollars  on  a  promissory 
note,  of  which  he  avers  he  is  the  owner  and  holder,  and  which  it  is 
declared  was  made  and  executed  by  the  defendants.  The  only 
issue,  as  appears  from  the  record  presented  to  the  jury,  was  fraud 
in  the  execution  of  the  note;  that  it  was  executed  by  one  having  no 
authority,  and  under  circumstances  which  were  a  fraud  upon  the 
rights  of  the  defendants  making  this  answer,  namely,  Taylor  and 
Andrews. 

It  is  admitted  by  the  pleadings  that  there  was  such  a  note  as 
that  set  out  in  the  complaint,  and  there  was  no  issue  as  to  the 
amount  due  on  such  note,  if  valid  for  any  purpose  against  these 
defendants.  In  short,  the  only  issue  made  by  the  pleadings  and 
tried  before  the  jury  upon  which  they  were  called  to  pass,  was, 
Did  the  element  of  fraud  enter  into  the  execution  of  this  note,  or 
was  there  a  want  of  power  or  authority  in  the  defendant,  Butler, 
to  bind  the  firm  of  which  he  was  one  member  and  his  co-defendants 
the  other  ?  In  answer  to  this  issue  the  jury  return  for  their  verdict 
that  "  we  find  in  favor  of  the  plaintiff  ";  that  is,  that  there  was  no 
fraud  in  the  execution  of  the  note,  the  subject  of  this  action.  On 
this  verdict  the  plaintiff  made  his  motion  for  judgment  for  the 
amount  demanded  in  the  prayer  of  his  complaint,   which  was 

1  Carpenter  v.  Sherfy,  71  111.  427,  accord.  Carr  v.  Anderson,  24  Miss.  188, 
contra. 

As  to  the  necessity  of  designating  the  amount  for  which  judgment  is  ren- 
dered, see  1  Black,  Judgments,  2d  ed.,  sees.  118,  150;  1  Freeman,  Judgments, 
4th  ed.,  sees.  48,  48a,  506;   11  Encyc.  of  PI.  &  Pr.  935-947.  —  Ed. 

2  A  part  of  the  opinion  is  omitted.  —  Ed. 


BETTS   V.    BUTLER  525 

granted  by  the  court.  From  this  the  defendants  who  appeared  in 
the  action  appeal,  and  assign  as  error  that  the  court  below  had  no 
authority  to  enter  a  judgment  for  four  hundred  and  twenty  dollars, 
or  for  any  other  definite  sum,  on  this  verdict;  but  contend  that  the 
verdict,  in  order  to  authorize  such  a  judgment  entry,  should  have 
found  the  amount  due  the  plaintiff.  This  is  assumed  upon  sections 
175  and  176  of  the  civil  practice  act.^ 

I  cannot  assent  to  the  construction  placed  upon  these  sections  by 
the  appellants'  counsel;  although  it  would  probably  be  the  better 
practice  in  such  cases  to  require  the  jur}^  to  find  the  amount  of  the 
demand,  yet  this  omission  does  not  deprive  the  prevailing  party  of 
his  right  to  have  judgment  for  the  sum  due.  It  certainly  could  not 
have  been  the  intention  of  the  law-makers  to  absolutely  require  a 
jury  to  find  in  their  verdict  that  a  certain  definite  sum  was  due  the 
plaintiff  or  the  defendant,  as  the  case  might  be,  where  there  was  no 
controversy  as  to  the  amount  for  which  judgment  should  be  given. 
If  the  court  had  instructed  the  jury  to  find  the  amount  due,  pro- 
vided they  found  for  the  plaintiff  on  the  issue  of  fraud,  it  could 
only  have  said  to  them,  you  will  find  the  sum  of  four  hundred  and 
twenty  dollars,  for  this  is  the  amount  achnitted  and  about  which 
there  is  no  question.  Hence,  at  most  it  is  but  matter  of  form,  the 
omission  of  which  will  not  vitiate  the  proceedings. 

In  the  case  of  Williams  v.  Willis,  7  Abb.  Pr.  90,  the  court  says 
that  "  the  facts  that  the  work  performed  and  materials  furnished, 
to  recover  for  which  the  action  was  brought,  had  been  done  and 
furnished  by  the  plaintiff,  and  the  amount  he  was  entitled  to  receive 
was  agreed  upon  and  achnitted,  but  the  defendant  denied  that  the 
contract  therefor  was  made  by  her  with  the  plaintiff,  as  alleged  in 
the  complaint.  On  that  issue  the  jury  found  in  favor  of  the  plain- 
tiff. That  fact  alone  would  not  be  sufficient  to  enable  the  court 
to  pronounce  judgment,  even  if  the  jury  had  answered  yes, 
instead  of  finding  as  they  did;  because  it  would  not  appear  from 
such  finding  whether  the  work  was  done,  or  the  materials  furnished, 
or  what  amount  the  plaintiff  was  entitled  to  receive  for  his  labor,  if 
done,  and  materials,  if  furnished.  The  verdict  was  not,  therefore, 
a  special  verdict.  It  may  be  regarded  as  a  verdict  in  the  nature  of  a 
special  verdict  as  to  one  issue,  or  a  special  finding  upon  a  particular 
issue.     If  any  amendment  of  the  verdict  were  necessary,  the  case  of 

»  Sec.  176  provides  that  "  when  a  verdict  is  found  for  the  plaintiff,  in  an 
action  for  the  recovery  of  money,  ...  the  jury  shall  also  find  the  amount  of 
the  recovery."  —  Ed. 


526  JUDGMENTS 

Burhaus  v.  Tibbets,  7  How.  Pr.  21,  illustrates  the  power  of  the 
court  to  permit  it  to  be  made;  but  I  think  it  unnecessary.  The 
verdict  of  the  jury  left  nothing  incomplete,  and  the  court,  taking 
the  admitted  facts,  with  the  verdict  of  the  jury,  could  have  no 
hesitation  as  to  the  judgment  to  be  rendered." 

Under  this  authority  there  can  be  no  question  of  the  correctness 
of  the  judgment  rendered  in  the  case  at  bar.  As  already  stated, 
the  execution  and  ownership  of  the  instrument  upon  which  the 
action  is  based,  as  well  as  the  amount  due  if  a  valid  note,  were  all 
admitted  by  the  pleadings,  which  admissions  are  as  binding  and 
effectual  as  if  expressed  in  terms.  These  admitted  facts,  taken 
with  the  verdict,  in  the  language  of  Judge  Brady,  left  nothing 
incomplete,  and  the  court  could  have  but  one  thing  to  do,  that  of 
ordering  judgment  for  the  party  entitled  under  such  admissions 
and  the  verdict,  and  for  the  amount  prayed  for  on  the  note,  as  was 
done  by  the  court  in  this  case. 


G.  TAYLOR  et  al.,  as  Partners  under  the  firm  name  of 
THE  FLORIDA   ORANGE   HEDGE  FENCE   COM- 
PANY  V.   A.   G.   BARNHAM   &   CO. 

Supreme  Court  of  Florida.     1895. 
[Reported  35  Florida,  297.] 

Taylor,  J.^  The  defendants  in  error,  as  plaintiffs  below,  sued 
the  plaintiffs  in  error,  as  defendants  below,  in  the  Circuit  Court  of 
Orange  county,  in  assumpsit  upon  an  account  for  work  and  labor 
and  materials;  the  suit  being  instituted  against  the  defendants  as 
former  copartners.  All  of  the  defendants  appeared  by  attorney, 
and  all  joined  in  a  plea  of  nil  debet.  Although  this  form  of  plea  is 
expressly  prohibited  by  our  68th  Rule  of  Practice  in  common-law 
actions,  the  plaintiffs  joined  issue  thereon.  After  thus  joining 
issue  the  parties  by  consent  had  the  cause  referred  to  an  attorney, 
as  referee,  for  trial.  .  .  . 

By  agreement  of  counsel  representing  all  parties  the  cause  was 
set  down  for  trial  on  February  17th,  1890,  and  on  that  day  the 
referee  rendered  judgment  in  favor  of  the  plaintiffs,  the  judgment 
being  in  the  following  form: 

'  A  part  of  the  opinion  is  omitted.  —  Ed. 


FLORIDA    ORANGE    HEDGE    FENCE    CO.    V.    BARNHAM    &    CO.     527 

"  In  the  Circuit  Court,  7th  Judicial  Circuit  of  Florida,  Orange 
county. 

A.  G.  Barnham  &  Co.  v. 
Collis  Ormsby  et  al.,  doing 
business  as  the  Florida  Or-  J 
ange  Hedge  Fence  Co. 

On  the  17th  day  of  February,  a.d.  1890,  the  above  cause  came 
on  to  be  heard,  and  after  argument  of  counsel  and  a  careful  examina- 
tion of  the  testimony,  I  find  that  the  defendants  are  indebted  to  the 
plaintiffs  in  the  sum  of  eight  hundred  and  thirteen  dollars  and 
thirty  cents  as  principal,  and  seventy-five  dollars  and  eighty-three 
cents  interest.  It  is  therefore  ordered  and  adjudged  that  the  plain- 
tiffs do  recover  of  and  from  the  defendants  the  sum  of  eight  hun- 
dred and  eighty-nine  dollars  and  thirteen  cents,  together  with  the 
further  sum  of  twenty-eight  dollars  and  forty-five  cents  (costs)  of 
suit.  H.  C.  Harrison, 

Referee." 

The  defendants  then  moved  the  referee  to  set  aside  his  find- 
ings and  to  grant  a  rehearing  of  the  cause  upon  the  following 
grounds:  ...  "  6th.  Because  the  .  .  .  finding  and  judgment 
of  the  referee  is  vague  and  indefinite."  Which  motion  the  referee 
denied  and  refused.  From  this  judgment  the  defendants  take 
writ  of  error.  .  .  . 

Under  the  sixth  ground  of  the  motion  for  rehearing,  the  de- 
fendants contend  that  the  judgment  is  void  because  it  is  vague  and 
indefinite  in  that  it  fails,  in  the  body  of  the  judgment,  to  give  the 
names  of  the  plaintiffs  in  whose  favor  it  is  rendered,  or  the  names  of 
the  defendants  against  whom  it  is  pronounced,  they  being  referred 
to  therein  simply  as  the  "  plaintiffs  "  and  "  defendants  ";  and  that 
no  valid  execution  can  issue  thereon  to  enforce  the  same,  as  it 
does  not  show  from  whom  the  adjudged  amount  is  to  be  collected. 
There  is  no  merit  in  this  contention.  The  declaration  gives  accu- 
rately the  names  of  each  defendant;  the  judgment  gives  the  style 
of  the  cause  at  its  head  with  sufficient  definiteness  to  show  without 
doubt  that  the  "  plaintiffs  "  and  "  defendants  "  referred  to  therein 
are  the  same  individuals  named  and  designated  as  such  in  the 
declaration  and  throughout  the  proceedings  composing  the  record 
in  the  cause.  While  it  is  best  that  a  judgment  should  be  so  com- 
plete within  itself  as  that  the  officer  issuing  the  process  to  enforce 
it  can  see  at  a  glance  the  parties  for  and  against  whom  such  process 
is  to  be  issued,  yet,  if  the  parties  for  and  against  whom  a  judgment 
is  rendered  are  so  referred  to  therein  as  that  a  reference  to  its 


528  JUDGMENTS 

caption,  or  to  the  pleadings,  process  and  proceedings  in  the  action, 
will  make  certain  the  names  of  the  parties  thus  referred  to,  it  is 
sufficient.  Every  judgment  may  be  construed  and  aided  by  the 
entire  record.  1  Freeman  on  Judgments  (4th  ed.),  sec.  50a; 
Smith  V.  Chenault,  48  Texas,  455;  Little  v.  Birdwell,  27  Texas, 
688;  Hays  v.  Yarborough,  21  Texas,  487;  Wilson  &  Wheeler  v. 
Nance  &  Collins,  11  Humph.  (Tenn.)  189. 

Finding  no  errors  in  the  record,  the  judgment  of  the  court  below 
is  affirmed.^ 


LYNCH   V.   FREELAND. 
Court  of  Appeals  of  Kentucky.     1803. 

[Reported  Sneed,  269.) 

It  is  assigned  as  an  error  in  this  suit  that  "  the  writ  and  declara- 
tion are  in  case,  and  the  verdict  and  judgment  are  in  debt." 

The  court  finds  that  the  writ  is  trespass  on  the  case  in  the  usual 
form;  and  the  declaration  also  seems  to  be  in  case,  although  it  is 
not  altogether  in  the  usual  form,  and,  perhaps,  is  deficient  in  sub- 
stance. It  is  at  least  certain  that  it  is  not  a  declaration  in  debt. 
But  the  verdict  and  judgment  could  only  have  been  authorized  by  a 
declaration  in  debt.  In  particular,  the  judgment  is  for  a  certain 
sum  and  interest  thereon  from  the  time  it  became  due  until  paid, 
whereas,  in  an  action  on  the  case,  the  verdict  and  judgment  could 
only  have  been  for  an  aggregate  sum  in  damages,  including  inter- 
est, until  the  time  they  were  rendered,  and  not  for  any  interest 
thereafter.  Therefore,  it  is  considered  by  the  court  that  the  judg- 
ment aforesaid  be  reversed  and  set  aside,  the  cause  be  remanded  to 
the  circuit  court  for  new  proceedings  to  be  had,  to  commence  by 
amending  the  declaration,  and  the  plaintiff  recover  of  the  defend- 
ant his  costs  in  this  behalf  expended,  which  is  ordered  to  be  certified 
to  the  circuit  court.^ 

^  As  to  the  necessity  of  designating  the  parties  for  and  against  whom  judg- 
ment is  rendered,  see  1  Black,  Judgments,  2d  ed.,  sec.  116;  1  Freeman,  Judg- 
ments, 4th  ed.,  sec.  50a;    11  Eiicyc.  of  Pi.  &  Pr.  948. 

As  to  the  necessity  of  designating  property  which  is  the  subject  of  a  judg- 
ment, see  De  Sepulveda  v.  Baugh,  74  Cal.  468,  5  Am.  St.  Rep.  455;  Rosenthal 
V.  Matthews,  100  Cal.  81,  34  Pac.  624;  Coleman  v.  Reel,  75  la.  304,  39  N.  W. 
510,  9  Am.  St.  Rep.  484;  1  Black,  Judgments,  2d  ed.,  sec.  117;  1  Freeman, 
Judgments,  4th  ed.,  sec.  50c.  —  Ed. 

2  As  to  the  necessity  of  conformity  of  the  judgment  to  the  pleadings,  see 
Reynolds  v.  Stockton,  140  U.  S.  254,  35  L.  ed.  464,  11  S.  Ct.  773;   Sache  v. 


PICKWOOD    V.    WRIGHT  529 

GROSVENOR  v.   DANFORTH. 
Supreme  Judicial  Court  of  Massachusetts.     1819. 

[Reported  IG  Massachusetts,  74.] 

This  was  a  writ  of  error,  brought  to  reverse  a  judgment  of  the 
Court  of  Common  Pleas  for  this  county,  rendered  in  an  action  of 
assumpsit,  wherein  the  said  Danforth  was  original  plaintiff,  and  the 
said  Grosvenor  was  original  defendant.^  .  .  . 

The  error  relied  on  was  that  judgment  was  rendered  for  54  dollars 
19  cents,  damage,  although  the  ad  damnum  in  the  original  writ  was 
twenty  dollars  only;  and  for  this  the  former  judgment  was  re- 
versed.^ 


PICKWOOD  V.   WRIGHT. 

Common  Pleas.     1791. 
[Reported  1  Henry  Blackstone,  642.] 

In  this  action  of  assumpsit  the  plaintiff  took  a  verdict  for  611  I. 
which  was  really  the  sum  due  to  him,  and  entered  up  judgment  for 
that  sum  besides  costs,  but  the  damages  laid  in  the  declaration 
were  but  600  /.  A  writ  of  error  was  brought  on  this  judgment,  and 
Kerby,  Serjt.  obtained  a  rule  to  show  cause  why  a  remittitur  of  the 
111.  should  not  be  entered.  Adair  and  Le  Blanc,  Serjts.  argued 
against  the  rule,  saying,  that  after  judgment  signed  and  error 
brought,  it  was  too  late  to  enter  a  remittitur  for  the  sum  which 
caused  the  error;  and  they  cited  the  case  of  Sandiford  v.  Bean, 
B.  R.  Hil.  13  Geo.  3,  as  an  authority  in  point.  Kerby,  on  the 
other  side,  insisted,  that  as  long  as  the  record  remained  in  court  it 
might  be  amended. 

The  court  thought  it  was  reasonable  to  allow  the  amendment, 
and  therefore  made  the  rule  absolute  upon  payment  of  the  costs 
of  the  writ  of  error. 

Wallace,  iUi  Mian.  itJ9,  11:^  N.  W.  88(5,  11  L.  K.  A.  (n.  s.),  803,  118  Am.  St. 
Rep.  612;  Munday  v.  Vail,  34  N.  J.  L.  418;  11  Encyc.  of  PI.  &  Pr.  868.  —  Ed. 

^  A  part  of  the  case  is  omitted.  —  Ed. 

«  See  Safford  v.  Weare,  142  Mass.  231,  7  N.  E.  730;  1  Black,  Judgments, 
2d  ed.,  sec.  138;   11  Encyc.  of  PI.  &  Pr.  899.  —  Ed. 


530  JUDGMENTS 

LABAHN   BRICK   CO.   v.   HECHT,   impleaded  with 
LEAFGREEN   CONSTRUCTION   COMPANY. 

Appellate  Court  of  Illinois.     1912. 
[Reported  169  Illinois  Appellate  Court  Reports,  447.] 

Smith,  J.^  The  appellee  brought  suit  against  the  Leafgreen 
Construction  Co.  and  Albert  S.  Hecht  in  the  Municipal  Court  of 
Chicago  on  a  note  for  the  sum  of  $2,000,  bearing  interest  at  the 
rate  of  six  per  cent  per  annum,  dated  July  27,  1908,  payable  thirty 
days  after  date  to  the  Leafgreen  Construction  Co.,  and  by  it 
endorsed,  signed  by  Albert  S.  Hecht.  The  defendants  were  duly 
served.  The  Leafgreen  Construction  Co.  did  not  appear  and 
default  was  entered  against  it.  Mr.  Hecht  appeared  and  contested 
the  suit.  The  issues  were  submitted  to  a  jury  and  the  jury  found 
for  the  plaintiff  and  assessed  his  damages  at  the  sum  of  $2,102; 
judgment  was  entered  on  the  verdict  against  both  defendants  and 
Mr.  Hecht  appealed.  .  .  . 

It  is  urged  that  the  ad  daynnum  being  for  $2,100,  it  was  error  to 
enter  judgment  for  $2,102.  It  is  true  that  the  entering  of  the  judg- 
ment for  a  larger  sum  than  the  ad  damnum  was  error,  but  the  ap- 
pellee having  filed  a  remittitur  in  this  Court  of  two  dollars,  it  is 
ordered  that  the  remittitur  of  the  sum  in  excess  of  $2,100  be  allowed. 
Winslow  V.  People,  117  111.  152.  We  also  think  that  the  maxim  de 
minimis  non  curat  lex  applies  to  this  error.  Village  of  Morgan 
Park  V.  Knopf,  210  111.  453;  Rolsch  v.  Young,  111  111.  App.  34; 
Underwood  v.  Whiteside  Co.  Bldg.  &  Loan  Association,  115  111. 
App.  387;  Spunner  v.  Roney,  122  111.  App.  19. 

We  are  of  the  opinion  that  the  other  errors  argued  are  untenable 
and  need  no  mention.     The  judgment  is  affirmed.       Affirmed? 


TAYLOR  V.   JONES. 
Supreme  Judicial  Court  of  New  Hampshire.     1860. 

[Reported  42  New  Hampshire,  25.] 

Trespass,  for  taking  sundry  articles  of  personal  property,  of  the 
alleged  value  of  $254.50,  in  the  city  of  New  York,  and  converting 
the  same  to  the  defendant's  use,  to  the  damage  of  the  plaintiff  the 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 

2  See  Hemmenway  v.  Hickes,  4  Pick.  (Mass.),  497;  Herbert  v.  Hardenbergh, 
5Halst.  (N.  J.),  222.  — Ed. 


TAYLOR   V.    JONES  531 

sum  of  $300.  Plea,  the  general  issue.  The  plaintiff's  writ  was 
dated  June  7,  1859.  .  .  . 

The  jury  having  returned  their  verdict  for  $500,  the  plaintiff 
moved  to  amend  his  writ,  by  increasing  the  ad  damnum.  The 
court  allowed  this  amendment  against  the  objection  of  the  de- 
fendant. 

Fowler,  J.^  .  .  .  From  a  careful  comparison  of  the  various 
authorities,  we  are  satisfied  that  the  reasonable  rule,  in  relation  to 
amendments  after  verdict,  and  one  which  reconciles  most,  if  not  all 
of  the  numerous  decisions,  would  be,  that  where  the  verdict  is  for  a 
sum  larger  than  the  ad  damnum,  the  difficulty  may  always  be 
remedied  by  entering  a  remittitur  for  the  excess;  that  the  ad  dam- 
num may  be  amended  after  verdict,  when  it  is  apparent  from  the 
declaration  itself  that  it  was  left  blank,  or  too  small  a  sum  inserted, 
through  mistake  or  inadvertence  only;  that  if  there  has  been  a  full 
and  fair  trial  on  the  merits  appearing  on  the  face  of  the  declaration, 
without  any  knowledge  by  either  party  of  the  defect,  judgment  may 
be  rendered  without  a  new  trial;  but  that,  if  it  does  not  appear  that 
the  defendant  had  no  knowledge  of  the  defect,  the  amendment  may 
be  made,  but  a  new  trial  must  be  granted,  to  give  him  an  opportu- 
nity to  contest  the  enlarged  demand;  that,  in  actions  sounding  in 
damages  only,  where  the  plaintiff  deliberately  estimates  the  injury 
to  himself,  and  there  is  only  a  difference  in  judgment  between  the 
jury  and  himself,  as  to  the  nature,  extent  and  aggravation  of 
the  injur}^  no  amendment  increasing  the  ad  damnum  to  cover  the 
verdict  will  be  allowed,  and  the  only  remedy  for  an  excessive  ver- 
dict is  a  remittitur;  yet,  that  the  court,  in  their  discretion,  may 
allow  the  ad  damnum  to  be  increased,  in  any  case,  where,  after  a 
full  and  fair  trial  upon  the  merits,  the  defendant  claims  and  insists 
upon  an  appeal  or  review.  Howe's  Pr.  305;  Hoit  v.  Molony,  2 
N.  H.  322;  Dawkes  v.  Pilfield,  Cro.  Jac.  297;  Pilford's  Case,  10 
Coke  115;  Chewly  v.  Morris,  2  W.  Bl.  1300;  Curtiss  v.  LawTence, 
17  Johns.  Ill;  Tidd's  Pr.  653;  Tomlinson  v.  Blacksmith,  7  D.  &  E. 
132;  Pearse  v.  Cameron,  1  M.  &  Sel.  675;  Bogart  v.  McDonald, 
2  Johns.  Cases  219;  Scutt  v.  Woodward,  1  H.  Bl.  238;  Wilder  v. 
Hendy,  2  Str.  1151;  Marshall  v.  Riggs,  2  Str.  1162;  Livingston  v. 
Rogers,  1  Caines  584,  588;  Usher  v.  Dansey,  4  M.  &  S.  94;  Per- 
seval  V.  Spenser,  Yelv.  45;  McLellan  v.  Crofton,  6  Greenl.  307; 
Hutchinson  v.  Crosser,  10  Mass.  251;  Whittier  v.  Varney,  10  N.  H. 

^  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 


532  JUDGMENTS 

291;    Green  v.  Bennet,  1  D.  &  E.  782;    Danielson  v.  Andrews,  1 
Pick.  156. 

With  these  views,  the  verdict  must  be  set  aside,  and 

A  new  trial  granted.^ 


PHARIS  V.   GERE. 
Supreme  Court  of  New  York,  General  Term.     1884. 

[Reported  31  Hun,  443.] 

Appeal  from  an  order  made  at  the  Onondaga  Circuit  and  Special 
Term,  denying  the  plaintiff's  motion  to  amend  the  complaint 
herein  after  verdict,  by  increasing  the  claim  for  damages  therein  to 
correspond  with  the  verdict,  and  refusing  to  allow  the  plaintiff  to 
treble  the  damages  found  by  the  jury,  except  upon  the  condition 
that  he  remit  the  excess  beyond  the  amount  of  the  verdict  and  in- 
terest thereon  from  the  time  it  was  rendered.  .  .  . 

Smith,  P.  J.  It  has  long  been  settled  that  the  court  \vill  not 
amend  the  complaint  after  verdict  by  increasing  the  amount  of 
damages  for  which  judgment  is  demanded,  without  setting  aside 
the  verdict  and  granting  a  new  trial,  to  give  the  defendant  an  oppor- 
tunity to  defend  against  the  enlarged  claim.  Accordingly  in  all 
actions  for  the  recovery  of  damages,  whether  sounding  in  tort  or  on 
contract,  the  sum  in  the  conclusion  of  the  declaration  or  complaint 
must  be  sufficient  to  cover  the  real  demand,  and  it  would  be  unjust 
to  allow  it  to  be  enlarged  after  verdict  without  granting  a  new  trial, 
as  the  defendant  may  have  gone  to  trial  relying  that  no  more 
damages  than  the  sum  claimed  could  be  recovered  against  him. 
Pilford's  case,  10  Co.,  117  a,  6;  Tomhnson  v.  Blacksmith,  7  T.  R., 
128;  1  Ch.  PI.  [14th  Am.  ed.],  339,  418;  Curtiss  v.  Lawrence,  17 
Johns.,  Ill;  Box  v.  Dey,  3  Wend.,  356;  Fish  v.  Dodge,  4  Den.,  311; 
Corning  v.  Corning,  2  Seld.,  97;  Coulter  v.  Express  Company,  5 
Lans.,  67;  Decker  v.  Parsons,  11  Plun,  295.  The  Code  has  not 
changed  the  rule.     Corning  v.  Corning;   Decker  v.  Parsons,  supra. 

The  complaint  in  this  action  contained  two  counts:  the  first 
charged  a  forcible  entry  and  detainer  upon  lands  of  the  plaintiff  to 
his  damage  of  $3,000,  and  alleged  that  thereby  "  the  defendant  by 
force  of  section  four  of  the  statute  of  '  trespass  on  lands  '  forfeited 
and  became  liable  to  pay  treble  the  amount  of  said  damages,"  and 
the  same  count  concluded  by  a  demand  of  judgment  for  the  sum  of 

1  See  1  Encyc.  of  PI.  &  Pr.  586.  —  Ed. 


PHARIS    V.    GERE  533 

S3,000  besides  costs.  The  second  count  alleged  a  forcible  detainer 
of  the  same  lands  to  the  plaintiff's  damage  of  $3,000.  The  com- 
plaint concluded  as  follows:  "  Wherefore,  on  account  of  the  fore- 
going premises,  said  plaintiff  demands  judgment  against  said 
defendant  in^the  sum  of  S3,000,  besides  costs  of  this  action."  At 
the  trial  the  court  instructed  the  jury  that  they  had  nothing  to  do 
with  the  question  of  treble  damages,  but  that  was  for  the  court 
alone,  and  they  were  only  to  find  the  actual  damages,  if  any,  sus- 
tained by  the  plaintiff.  The  jury  by  their  verdict  found,  under 
the  first  count,  that  there  was  a  forcible  detainer,  and  found  for  the 
plaintiff  in  the  sum  of  $2,250.  Thereupon  the  plaintiff  moved  to 
amend  the  complaint  by  increasing  the  amount  claimed  in  the 
prayer  thereof  from  .$3,000  to  $7,000,  and  that  the  amount  of 
damages  found  l^y  the  jury  be  trebled.  The  court  denied  the 
motion  to  amend,  but  gave  the  plaintiff  leave  to  enter  an  order 
multiplying  the  amount  of  damages  found  by  the  jury  by  three, 
upon  his  filing  a  stipulation  remitting  all  of  said  sum  so  resulting  in 
excess  of  $3,000  and  interest  thereon  from  the  date  of  the  verdict, 
and  to  enter  a  judgment  for  said  sum  of  $3,000  with  interest,  and 
no  more. 

The  order  was  strictly  in  accordance  with  the  rule  and  practice 
of  the  court  above  stated.  The  complaint  claimed  only  $3,000 
damages.  The  fact  that  the  first  count  alleged  that  the  defendant 
had  become  liable  to  pay  treble  damages,  did  not  enlarge  the  claim 
for  damages  made  at  the  conclusion  of  that  count  and  at  the  conclu- 
sion of  the  complaint.  The  plaintiff  having  limited  his  claim  for 
damages  to  the  sum  of  $3,000,  could  not  take  judgment  for  any 
greater  sum,  either  as  single  or  treble  damages. 

The  motion  to  amend  was  properly  denied.  So  far  as  appears, 
the  plaintiff  asked  to  be  allowed  to  amend  unconditionally  and  not 
upon  the  usual  terms  of  paying  co.sts  and  taking  a  new  trial. 

The  order  should  be  affirmed,  with  ten  dollars  costs  and  dis- 
bursements. 

Hardin  and  Barker,  JJ.,  concurred.  So  ordered.^ 

^  The  New  York  Code  of  Civil  Procedure,  sec.  1207,  provides  that  "  when 
there  is  no  answer,  the  judgment  shall  not  be  more  favorable  to  the  plaintiff, 
than  that  demanded  in  the  complaint.  Where  there  is  an  answer,  the  court 
may  permit  the  plaintiff  to  take  any  judgment,  consistent  with  the  case  made 
by  the  complaint,  and  embraced  within  the  issue."  See  Bradley  v.  Shafer,  64 
Hun  (N.  Y.),  428;  Arrigo  v.  Calalno,  7  N.  Y.  Misc.  515,  27  N.  Y.  Supp.  995; 
Nichols  &  Shepard  Co.  v.  Wiedemann,  72  Minn.  344,  75  N.  W.  208,  76  N.  W. 
41;  Erek  v.  Omaha  Nat.  Bank,  43  Neb.  613,  62  N.  W.  67.  —  Ed. 


534  JUDGMENTS 

BROWN   V.   McLEISHe^aZ. 

Supreme  Court  of  Iowa.     1887. 

[Reported  71  Iowa,  381.] 

Action  to  recover  damages  for  personal  injuries  sustained  by 
plaintiff  by  falling  into  a  ditch  dug  by  defendants  in  a  public 
street.  There  was  a  judgment  upon  a  verdict  for  plaintiff.  Both 
parties  appeal. 

Beck,  J.^  .  .  .  The  verdict  was  for  $1,500.  This  the  district 
court  reduced  to  SI, 200,  and  rendered  judgment  for  that  sum. 
From  this  ruling  the  plaintiff  appeals.  It  is  plainly  erroneous,  the 
district  court  having  no  authority  to  render  judgment  for  a  less 
amount  than  the  verdict. 

The  judgment  is  reversed  upon  both  appeals,  and  is  remanded  to 
the  court  below  for  a  new  trial.  Reversed. 


BUCK   V.   LITTLE  and  NANCE,  use,  etc. 

High  Court  of  Errors  and  Appeals  of  Mississippi. 

1852. 

[Reported  24  Mississippi,  463.] 

Yerger,  J.  This  was  an  action  of  assumpsit  against  the  drawer 
of  an  inland  bill  of  exchange.  The  bill  was  not  protested;  but  it 
was  proved  that  it  was  drawn  without  authority,  and  that  the 
drawer  had  no  right  to  expect  that  it  would  be  accepted  or  paid. 
On  this  evidence,  the  jury  found  a  verdict  agamst  the  defendant  for 
the  principal  and  interest  of  the  bill.  This  verdict  was  right.  It 
appears  from  a  bill  of  exceptions,  that  after  the  verdict,  upon  mo- 
tion of  the  plaintiff,  the  court  added  five  per  cent  to  the  amount  of 
the  verdict,  and  gave  judgment  for  the  amount  of  the  verdict,  and 
the  five  per  cent  additional.  This  was  erroneous,  even  if  it  were 
true,  as  contended  for  by  the  counsel  for  defendant  in  error,  that 
by  virtue  of  the  act  of  May  llth,  1837,  Hutch.  Code,  art.  5,  642, 
the  plaintiff  had  a  right  to  five  per  cent  damages  on  the  bill  of 
exchange.  Yet  as  the  jury  had  found  a  verdict  for  a  specific  sum 
of  money,  it  was  not  competent  for  the  court  to  render  a  judgment 
for  any  greater  amount.  All  that  the  court  in  such  cases  was 
authorized  to  have  done,  was  to  have  set  the  verdict  aside  and  given 

*  Only  a,  part  of  the  opinion  is  given.  —  Ed. 


CRAWFORD,  FLINN,  AND    BRENNER    V.    BEARD    AND    BEARD         535 

the  plaintiff  a  new  trial.     In  adding  to  the  amount  of  the  verdict, 
the  court  was  assuming  the  province  of  the  jury. 

But  the  provisions  of  the  statute  before  referred  to,  by  no  means 
warranted  the  court  or  jury  in  allowing  the  plaintiff  five  per  cent 
damages.  The  right  to  recover  damages  on  inland  bills  did  not 
exist  at  common  law.  It  exists  alone  by  statutory  provision,  and 
that  provision  only  extends,  in  the  language  of  the  statute,  to 
"  domestic  or  inland  bills  which  shall  be  protested  for  non-pay- 
ment." As  the  bill  of  exchange  in  this  case  was  not  protested,  it 
did  not  come  ^\^thin  the  foregoing  provision.  The  judgment  of 
the  circuit  court  must,  therefore,  be  reversed.  But  as  the  defend- 
ant in  error  proposes  to  remit  the  excess  in  the  amount  of  the  judg- 
ment, we  will  render  the  judgment  in  this  court,  which  the  court 
below  should  have  rendered.  The  case  of  Anderson  v.  Tarpley,  6 
S.  &  M.  507,  warrants  us  in  so  doing.  The  judgment  of  the  circuit 
court  of  Holmes  county  is  reversed,  and  judgment  rendered  here  for 
the  amount  of  the  verdict  rendered  by  the  jury,  with  interest 
thereon  from  the  date  of  the  verdict.  Defendant  in  error  Avill  pay 
the  costs  in  this  court. ^ 


Section  II. 
Rendition  and  Entry. 


CRAWFORD,   FLINN,  and  BRENNER  v.   BEARD  and 

BEARD. 

Supreme  Court  of  Oregon.     1885. 

[Reported  12  Oregon,  447.] 

Thayer,  J.^  This  is  an  appeal  from  a  decree  rendered  by  the 
Circuit  Court  for  the  county  of  Linn,  in  a  suit  brought  by  the  said 
respondents  against  the  said  appellants,  to  subject  certain  real 
propert}^  to  the  payment  of  three  several  judgments  obtained  by 
the  said  respondents  severally  against  the  appellant  John  Beard, 
in  actions  at  law  in  said  Circuit  Court.  .  .  . 

Two  of  the  said  judgments  were  obtained  by  default,  and  entered 
by  the  clerk  of  said  Circuit  Court  in  vacation,  without  any  order  of 
the  court,  and  the  third  was  entered  by  the  said  clerk  upon  con- 
fession.     The  appellants'  counsel  dem^  the  validity  of  said  judg- 

1  As  to  the  necessity  of  conformity  of  the  judgment  to  the  verdict  or  findings, 
see  11  Encyc.  of  PI.  &  Pr.  904.  —  Ed. 

2  A  part  of  the  opinion  is  omitted.  —  Ed. 


536  JUDGMENTS 

ments,  and  claim  that  the  statute  authorizing  a  judgment  to  be 
entered  in  such  a  case  is  unconstitutional.  .  .  . 

The  view  I  am  inclined  to  adopt  in  adjusting  the  rights  of  the 
parties  to  the  controversy,  renders  it  necessary  to  consider  first  the 
question  as  to  the  validity  of  the  alleged  judgment  against  John 
Beard.  It  is  contended  upon  the  part  of  the  appellants  that  the 
entry  of  judgment  by  default  or  upon  confession,  involves  the 
exercise  of  judicial  power,  and  that,  as  all  judicial  power  in  this 
State  is  required  to  be  vested  in  certain  courts,  the  legislature  had 
no  authority  to  confer  any  such  power  upon  the  clerk.  The 
decisions  of  other  courts  under  similar  provisions  of  statute  or 
organic  restrictions  are  conflicting.  The  point  of  difference  be- 
tween them  is  a  disagreement  as  to  whether  such  entry  is  a  judicial 
or  ministerial  act.  If  I  were  required  to  decide  the  abstract  ques- 
tion I  should  be  very  much  inclined  to  hold  that  the  rendition  of 
judgment,  in  all  cases,  was  a  judicial  act.  The  mere  entry  of 
judgment,  no  doubt,  is  a  ministerial  duty,  but  it  seems  to  me  that 
before  such  entry  can  be  made  there  must  be  an  adjudication 
either  that  the  facts  admitted,  or  the  confession  and  statement  in 
the  particular  case,  entitle  the  party  to  a  judgment.  But  our 
statute  upon  the  subject  has  been  in  force  for  nearly  twenty  years. 
It  may  be  said  to  have  been  acquiesced  in  by  the  bar,  and  it  has 
tacitly  been  upheld  by  the  courts.  It  has  become  a  rule  of  prac- 
tice, and  if  pronounced  invalid  now  would  cause  disturbance  of 
property  rights,  and  occasion  great  mischief.  When  an  act  of  the 
legislature  has  been  so  long  recognized  as  binding,  and  important 
affairs  of  the  community  affecting  individual  rights  have  been 
transacted  in  accordance  with  its  provisions,  it  should  not  be  dis- 
turl)ed  unless  it  plainly  and  unequivocally  conflicts  with  the 
organic  law.  An  act  which  has  been  sanctioned  by  the  com- 
munity ought  not  to  be  declared  unconstitutional  by  the  courts, 
when  the  question  is  in  any  degree  doubtful.  Whatever,  there- 
fore, my  owm  private  notions  upon  the  subject  are,  so  long  as  I  am 
not  positively  certain  of  their  correctness,  I  feel  constrained  to 
hold  that  such  judgments  are  valid. ^  .  .  . 

The  chief  justice  is  of  the  opinion  that  the  statute  conferring 
upon  clerks  power  to  enter  a  judgment  in  such  a  case  is  uncon- 
stitutional and  void,  and  that  the  maxim  communis  error  facit  jus 
is  inapplicable.     Pease;  v.  Peck,  18  How.  597. 

1  Talbot  V.  Garretson,  31  Ore.  256,  49  Pac.  978,  accord.  —  Ed. 


H.    GUND    &    COMPANY   V.    HORRIGAN  537 

H.   GUND   &   COMPANY  v.   HORRIGAN   et  al 
Supreme  Court  of  Nebraska.     1898. 

[Reported  53  Nebraska,  794.] 

Error  from  the  district  court  of  Adams  county.  Tried  below 
before  Beall,  J.  Ajfirmed. 

Ryan,  C.  This  action  was  begun  in  the  district  court  of  Adams 
county  to  subject  to  the  payment  of  a  judgment  certain  real  prop- 
erty claimed  by  William  and  Catherine  Horrigan  as  a  homestead. 
On  January  19,  1893,  there  was  a  trial,  resulting  in  findings  of 
certain  facts,  among  which  were  the  findings  that  William  and 
Catherine  Horrigan  had  a  homestead  interest  in  the  real  property, 
subject  and  second  to  a  mortgage  of  SI, 400  and  accrued  interest 
thereon;  that  a  conveyance  of  William  and  Catherine  Horrigan  to 
their  co-defendant,  Peter  Horrigan,  was  in  fact  and  law  a  mort- 
gage, which  was  subject  and  inferior  to  the  claim  of  plaintiff,  H. 
Gund  &  Co.,  and  not  a  lien  upon  the  premises.  While  these  find- 
ings were  followed  by  an  order  directing  that  judgment  be  entered 
upon  them,  there  seems  to  have  been  no  such  judgment  rendered 
at  that  time.  On  May  16,  1894,  there  was  filed  in  this  case  a 
paper,  which,  though  more  pretentious  in  its  designation  and 
scope,  may  be  treated  as  a  motion  for  an  entry  of  judgment  nunc 
pro  tunc.  Notice  of  the  pendency  of  this  application  was  served 
on  the  attornej^s  for  Gund  &  Co.,  by  whom  a  special  appearance 
was  filed  July  2,  1894,  objecting  to  the  jurisdiction  of  the  court  for 
the  reason  that  no  summons  had  been  served  on  their  client,  and 
for  the  further  reason  that  the  court  had  lost  jurisdiction  of  this 
case.  On  July  3,  1894,  the  record  discloses  that  the  cause  was 
submitted  to  the  court  upon  the  evidence,  oral,  written,  and 
documentary,  which  had  been  under  consideration  originally,  and 
that  the  court  thereon  made  a  finding  that  the  property  was  of  the 
value  of  $3,400,  and  that  because  of  the  mortgage  thereon  of 
$1,400  there  was  no  balance  above  the  homestead  exemption  sub- 
ject to  the  judgment  in  favor  of  H.  Gund  &  Co.  There  was 
thereupon  entered  a  decree  that  the  judgment  in  favor  of  H.  Gund 
&  Co.  was  not  a  lien  on  the  premises,  and  the  homestead  rights  of 
William  and  Catherine  Horrigan  were  quieted  against  said  judg- 
ment. In  Van  Etten  v.  Test,  49  Neb.  725,  it  has  been  held  that 
where,  in  fact,  a  judgment  was  rendered  but  not  recorded,  the 
court,  at  any  time  afterward,  had  power,  independentl}^  of  statu- 
tory authority,  7iunc  pro  tunc,  to  enter  a  proper  judgment  against 


538  JUDGMENTS 

the  defendant  upon  due  showing  in  a  proper  proceeding.  The 
facts  in  this  case  justified  the  entry  of  a  judgment  nunc  pro  tunc, 
and  in  legal  effect  there  was  but  the  entry  of  such  a  judgment. 
There  has  been  pointed  out  no  irregularity  in  the  exercise  of  this 
power,  and  we  therefore  conclude  that  no  such  irregularity  exists. 
The  judgment  of  the  district  court  is  accordingly  Affirmed.^ 


CURRIER  V.   THE   INHABITANTS  OF  LOWELL. 
Supreme  Judicial  Court  of  Massachusetts.     1834. 

[Reported  16  Pickpring,  170.] 

This  was  an  action  on  the  case  upon  St.  1786,  c.  81,  to  recover 
double  damages  for  injuries  sustained  by  the  plaintiff  in  conse- 
quence of  being  precipitated  into  an  excavation,  while  travelling 
on  a  public  highway  in  Lowell.  .  .  . 

A  verdict  was  returned  by  the  jury,  for  the  plaintiff. 

The  defendants  moved  for  a  new  trial,  because  the  instruction  to 
the  jury  was  erroneous  in  point  of  law. 

At  the  present  term  of  the  Court,  the  death  of  the  plaintiff,  on 
Saturday,  after  the  commencement  of  the  term,  having  been 
suggested,  it  was  moved  by  the  counsel  for  the  defendants,  that  the 
action  should  be  dismissed.  The  counsel  who  were  for  the  plaintiff 
contended,  that  judgment  should  be  entered  up  as  of  some  day  of 
this  term  before  his  decease.  .  .  . 

Putnam,  J.,  delivered  the  opinion  of  the  Court.^  In  regard  to 
the  motion  of  the  defendant  to  dismiss  the  action,  on  account  of 
the  death  of  the  plaintiff,  we  think  that  the  law  upon  this  subject 
is  well  stated  in  Tidd's  Pract.  (1st  Am.  edit.)  846.  "  If  either 
party  after  verdict,  had  died  in  vacation,  judgment  might  have 
been  entered  that  vacation,  as  of  the  preceding  term,  and  it 
would  have  been  a  good  judgment  at  common  law,  as  of  the 
preceding  term;    though   it  would  not  be  so  upon  the  statute 

1  See  Creed  v.  Marshall,  160  N.  C.  394,  76  S.  E.  270;  18  Encyc.  of  PI.  &  Pr. 
458. 

But  entry  nunc  pro  tunc  will  not  be  allowed  to  prejudice  a  third  party  who 
has  become  owner  of  the  pr()f)erty  affected  by  the  judgment,  in  reliance  on  the 
record.  Clark  &  Leonard  Inv.  Co.  v.  Rich,  81  Neb.  312,  115  N.  W.  1084,  15 
L.  R.  A.  (n.  s.),  682;    1  Freeman,  .Judgment.s,  4th  ed.,  sec.  66.  —  Ed. 

^  The  statement  of  facts  is  abridged  and  a  jiart  of  the  opinion  in  which  it 
was  held  that  the  instruction  was  correct,  is  omitted.  —  Ed. 


CURRIER   V.    THE    INHABITANTS    OF   LOWELL  539 

of  frauds  in  respect  of  purchasers,  but  from  the  signing.  And 
if  either  party  die  after  a  special  verdict,  and  pending  the  time 
taken  for  argument  or  advising  thereon,  or  on  a  motion  in  arrest 
of  judgment,  or  for  a  new  trial,  judgment  may  be  entered  at 
common  law  after  his  death,  as  of  the  term  in  which  the  postea  was 
returnable,  or  judgment  would  otherwise  have  been  given  nunc  pro 
tunc;  that  the  delay  arising  from  the  act  of  the  court  may  not  turn 
to  the  prejudice  of  the  party."  And  although  there  can  be  no 
appearance  for  the  party  who  has  deceased,  yet  the  court  will  hear 
from  any  one  of  its  officers,  as  an  amicus  curiae,  any  suggestions  as 
to  the  merits.  Ilsley's  Case,  1  Leon.  187.  In  Oades  v.  Wood- 
ward, 1  Salk.  87,  the  attorney  for  the  plaintiff  was  permitted  to 
enter  the  judgment  as  of  a  preceding  term,  although  the  party 
died  in  the  vacation.  The  death  of  the  partj^  was  not  considered 
as  a  revocation  of  the  power  to  confess  the  judgment.  If  the  party 
died  at  the  same  term  when  the  suggestion  was  made,  the  court 
would  not  take  any  notice  of  it,  but  proceed  to  enter  up  the  judg- 
ment. And  in  that  case  the  court  entered  up  judgment  in  22  Car. 
2,  as  of  Michaelmas  term,  20  Car.  2,  when  the  party  who  had  died 
was  in  full  life,  the  cause  having  been  pending  from  that  time,  but 
no  continuances  having  been  entered.  That  proceeding  was  held 
to  be  well  warranted  by  the  common  law  and  by  statutes.  Crispe 
V.  Jackson,  1  Sid.  462. 

The  court  will  go  back  to  the  time  when  the  judgment  might 
have  been  rendered  on  the  verdict,  if  no  motion  had  been  made 
which  prevented  it.  Tooker  v.  Duke  of  Beaufort,  1  Burr.  147; 
Mayor  of  Norwich  v.  Berry,  4  Burr.  2277. 

It  was  stated  at  the  argument,  that  the  plaintiff  deceased  on 
Saturday  after  the  commencement  of  this  term.  And  we  are  all  of 
opinion,  that  the  judgment  may  legally  be  rendered  as  upon  some 
day  of  the  term  when  he  was  in  full  life.  .  .  , 

Judgment  according  to  verdict.^ 

1  See  Stickney  v.  Davis,  17  Pick.  (Mass.),  169;  Wilkins  v.  Wainwright, 
173  Mass.  212,  53  N.  E.  397;  Schaeffer  v.  Coldren,  237  Pa.  77,  85  Atl.  98. 

In  Clark  &  Leonard  Investment  Co.  v.  Rich,  81  Neb.  321,  115  N.  W.  1084, 
15  L.  R.  A.  (n.s.),  682,  the  court  said:  "  There  are  two  classes  of  cases  in  which 
it  has  been  held  proper  to  enter  judgments  and  decrees  7iunc  pro  tunc.  First, 
those  cases  in  which  the  suitors  have  done  all  in  their  power  to  place  the  cause 
in  a  condition  to  be  decided  by  the  court,  but  in  which,  owing  to  the  delay  of  the 
court,  no  final  judgment  has  been  entered.  The  second  class  embraces  those 
cases  in  which  judgment,  though  pronounced  by  the  court,  has  from  accident 
or  mistake  of  the  officers  of  the  court  never  been  entered  on  the  court  records. 
Where  the  case  has  been  fully  tried,  and  the  court  takes  it  under  advisement. 


540  JUDGMENTS 

Section  III. 

Judgments  by  Default. 

ANDREWS   V.   BLAKE. 

Common  Pleas.     1790. 

[Reported  1  Henry  Blackdone,  529.] 

This  was  an  action  of  assumpsit  on  a  bill  of  exchange,  in  which 
the  defendant  let  judginent  go  by  default.  In  consequence  of 
which  a  rule  was  granted  to  show  cause  why  it  should  not  be 
referred  to  the  prothonotary  to  ascertain  the  damages  and  calculate 
interest  on  the  bill,  without  a  writ  of  inquiry.  Kerby,  Serjt. 
shewed  cause,  contending  that  the  court  could  not  dispense  with  a 
writ  of  inquiry  in  an  action  of  damages;  and  he  stated  the  principle 
to  be,  that  the  intervention  of  a  jury  was  necessary  in  all  cases, 
where  the  debt  really  due  did  not  appear  upon  the  face  of  the 
declaration. 

Lawrence,  Serjt.  in  support  of  the  rule,  relied  on  the  case  of 
Rashleigh  v.  Salmon  (1  H.  Bl.  252)  where  on  a  judgment  by  default 
on  a  promissory  note,  the  same  reference  was  made  to  the  pro- 
thonotary as  was  desired  in  the  present  instance.  The  court  said, 
that  as  it  would  be  the  means  of  saving  expence  to  the  parties,  as 
the  amount  of  the  bill  appeared  on  the  face  of  it,  and  the  interest 
might  be  exactly  calculated,  they  thought  it  right  to  make  the 
rule  absolute,  which  was  accordingly  done.^ 

during  which  one  of  the  parties  dies,  a  judgment  will  be  entered  mine  pro  turw 
as  of  the  date  of  the  case  being  submitted  to  the  court,  in  order  that  no  prej- 
udice shall  result  on  account  of  the  death  of  the  party,  and  the  same  rule 
obtains  where  a  party  is  prevented  from  entering  up  a  judgment  on  a  verdict  in 
his  favor  on  account  of  a  motion  for  a  new  trial,  during  the  pendency  of  which 
the  party  dies.  1  Freeman,  Judgments  (4th  ed.),  sec.  58.  Den  v.  Tomlin,  3 
Har.  (N.  J.),  14,  35  Am.  Dec.  525.  A  court  which  has  ordered  a  judgment, 
which  the  clerk  has  failed  or  neglected  to  enter  in  the  record,  has  power  after 
the  term  at  which  it  was  rendered  has  passed  to  order  the  judgment  so  ren- 
dered to  be  entered  nunc  pro  tunc,  provided  there  be  satisfactory  evidence  that 
the  judgment  was  rendered  as  alleged,  and  of  the  nature  and  extent  of  the  reUef 
granted  by  it.  1  Freeman,  Judgments  (4th  ed.),  sec.  61."  —  Ed. 
1  Cowles  V.  Cowles,  121  N.  C.  272,  28  S.  E.  476,  accord.  —  Ed. 


DISOSWAY   V.    EDWARDS  541 

DISOSWAY  V.   EDWARDS. 

Supreme  Court  of  North  Carolina.     1904. 
[Reported  134  North  Carolina,  254.] 

Action  by  Mark  Disosway  against  A.  M.  Edwards,  heard  b}^ 
Judge  Fred  Moore  at  November  Term,  1903,  of  the  Superior 
Court  of  Craven  County. 

This  is  an  action  upon  a  bond  executed  by  the  defendant  in  the 
following  words:  "  Know  all  men  by  these  presents  that  I,  A.  M. 
Edwards,  of  Craven  County,  N.  C,  acknowledge  myself  indebted 
to  Mark  Disosway  in  the  sum  of  one  thousand  dollars.  The  condi- 
tion of  this  bond  is  such  that  if  the  said  A.  M.  Edwards  shall  at  any 
time,  within  the  next  twenty  years  from  date  hereof,  engage  in  the 
sale  of  spirituous  liquors,  either  directly  or  indirectly,  within  the 
limits  of  the  city  of  New  Bern,  N.  C,  then  this  bond  to  be  in  full 
force  and  effect,  and  the  said  Mark  Disosway,  his  heirs  or  assigns, 
in  that  case,  is  fully  authorized  hereby  to  at  once  take  steps  for  the 
enforcement  of  this  obligation,  otherwise  this  bond  to  become  null 
and  void.    A.  M.  Edwards,  (Seal).     Witness,  R.  B.  Nixon." 

The  complaint  alleges  a  breach  in  the  bond,  inasmuch  as  the 
defendant  continues  to  engage  in  the  sale  of  spirituous  liquors  in 
said  city  of  New  Bern,  and  further  alleges  in  separate  paragraphs 
that  he  is  thereby  "  endamaged  to  the  amount  of  one  thousand 
dollars,"  and  that  "  the  defendant  is  indebted  to  him  in  the  sum  of 
one  thousand  dollars." 

The  defendant  demurred  upon  the  following  grounds:  "1.  That 
the  bond  set  out  in  the  fourth  paragraph  of  the  complaint  is  in 
restraint  of  trade,  tending  to  create  a  monopoly,  contrary  to 
public  policy,  null  and  void. 

2.  For  that  in  any  event  such  a  bond  could  only  be  good  to  the 
extent  of  securing  actual  damage  sustained,  and  the  complaint 
does  not  set  forth  any  fact  from  which  the  Court  can  see  that  the 
plaintiff  has  sustained  any  damage  whatever." 

Whereupon,  judgment  was  rendered  as  follows:  "  This  cause 
coming  on  to  be  heard  upon  the  complaint  of  plaintiff  and  demur- 
rer thereto  filed  by  the  defendant,  and  upon  argmnent  of  counsel 
said  demurrer  being  overruled  and  the  defendant  allowed  to  answer 
over,  but,  declining  to  answer,  excepts  to  the  order  of  the  Court 
overruling  said  demurrer  and  appeals  to  the  Supreme  Court;  it  is 
thereupon  ordered  and  adjudged  that  the  plaintiff  recover  of  the 
defendant  the  sum  of  one  thousand  dollars,  upon  the  verified  com- 


542  JUDGMENTS 

plaint  of  the  plaintiff,  no  answer  being  filed  by  the  defendant,  with 
interest  until  paid,  and  the  costs  of  action." 

Douglas,  J.,  after  stating  the  case.^  We  think  the  demurrer 
was  properly  overruled  on  both  grounds,  but  that  there  is  error  in 
the  judgment  in  allowing  the  full  amount  of  the  bond  in  the  absence 
of  sufficient  allegations  in  the  complaint  to  enable  the  Court  to 
hold  as  matter  of  law  that  the  penalty  of  the  bond  is  in  the  nature 
of  stipulated  or  liquidated  damages. 

The  plaintiff  alleges  that  he  is  endamaged  in  the  sum  of  one 
thousand  dollars,  and  while  this  is  not  such  a  specific  allegation  of 
fact  as  is  deemed  admitted  by  demurrer,  yet  it  is  sufficient  to  en- 
title him  to  an  inquiry  as  to  his  actual  damages  in  view  of  the 
achnission  of  his  cause  of  action.  It  is  not  stated  in  the  bond  that 
it  is  intended  to  cover  stipulated  or  liquidated  damages,  and  while 
such  an  inference  might  be  drawn  from  some  of  the  attending  cir- 
cumstances, it  is  not  sufficiently  strong  to  overcome  the  general 
rule  of  interpretation.  As  the  primary  object  of  the  allowance  of 
damages  is  to  recompense  the  plaintiff  for  the  actual  loss  sustained 
from  the  injury,  that  is,  to  make  him  whole,  courts  are  always 
inclined  to  construe  a  bond  as  penal  in  its  nature,  unless  such  a 
construction  would  tend  to  defeat  its  essential  object.  This  is 
true  even  when  it  is  expressly  stated  that  the  amount  of  the  bond 
is  intended  as  stipulated  damages.  There  are  cases  where  the  full 
amount  so  stipulated  is  allowed,  as,  for  instance,  where  it  is  ex- 
tremely difficult  or  practically  impossible  to  ascertain  the  actual 
damage;  but  even  then  we  think  that,  to  entitle  the  plaintiff  to 
more  than  nominal  damages,  sufficient  facts  should  appear,  either 
by  proof  or  admitted  allegations,  that  some  actual  loss  has  been 
sustained,  and  that  the  amount  of  the  bond  is  not  unreasonable. 
These  questions  are  fully  discussed  by  this  Court  in  Lindsay  v. 
Anesley,  28  N.  C,  186;  Thoroughgood  v.  Walker,  47  N.  C,  15; 
Burrage  v.  Crump,  48  N.  C,  330;  Wheedon  v.  Trust  Co.,  128 
N.  C,  69.  .  .  . 

We  are  not  inadvertent  to  the  line  of  decisions  distinguishing 
between  ordinary  contracts  and  those  stipulating  against  carrying 
on  a  trade  or  business;  but  while  in  such  cases  the  courts  are  more 
inclined  to  allow  liquidated  damages,  yet  in  all  cases  the  clear 
intention  of  the  parties  and  the  reasonableness  of  the  amount 
must  affirmatively  appear  to  withdraw  the  case  from  the  operation 
of  the  general  rule. 

1  A  part  of  the  opinion  is  omitted.  —  Ed. 


EAST    INDIA    COMPANY    V.    GLOVER  543 

We  are  deciding  the  case  as  it  is  presented  to  us;  but  upon  a  trial 
on  the  merits  it  may  be  made  to  appear  that  liquidated  damages 
were  reasonably  intended.  We  would  suggest  that  both  the  plain- 
tiff and  the  defendant  be  allowed  to  amend  their  pleadings  so  as 
fully  to  present  the  question  at  issue. 

The  defendant  strenuously  contends  that  the  contract  is  against 
public  policy  as  being  in  restraint  of  trade.  We  are  not  prepared 
to  say  that  the  contract  is  so  unreasonable  as  to  be  void  under  our 
line  of  decisions,  and  we  are  not  disposed  to  extend  the  rule  in 
favor  of  the  multiplication  of  saloons.  The  following  cases  from 
our  own  Reports  jnay  be  taken  as  exemplifications  of  the  general 
rule:  Baker  v.  Cordon,  86  N.  C,  116,  41  Am.  Rep.,  448;  Cowen  v. 
Fairbrother,  118  N.  C,  406,  32  L.  R.  A.,  829,  54  Am.  St.  Rep., 
733;  Kramer  v.  Old,  119  N.  C,  1,  56  Am.  St.  Rep.,  650,  34  L.  R.  A., 
389;  King  v.  Fountain,  126  N.  C.  196;  Hauser  v.  Harding,  126 
N.  C,  295;  Jolly  v.  Brady,  127  N.  C,  142.  We  think  that  this 
is  a  case  which  must  be  finally  determined  upon  all  the  facts  as 
they  may  be  made  to  appear  upon  the  trial  of  the  issues. 

Error. 


EAST   INDIA   COMPANY  v.   GLOVER. 

Nisi  Prius.     1725. 

IReported  1  Strange,  612.] 

The  plaintiffs  declared  upon  a  sale  of  coffee  at  so  much  per 
hundred,  which  the  defendant  was  to  take  away  by  such  a  time,  or 
answer  in  damages.  There  was  judgment  by  default  and  on  exe- 
cuting a  writ  of  inquiry  before  Chief  Justice  Pratt  at  Guildhall,  he 
refused  to  let  the  defendant  in  to  give  evidence  of  fraud  on  the  side 
of  the  plaintiffs  at  the  sale,  because  he  said  the  defendant  had 
admitted  the  contract  to  be  as  the  plaintiff  had  declared,  by  suffer- 
ing judgment  by  default,  instead  of  pleading  non  assumpsit;  and 
now  they  were  only  upon  the  quantum  of  damages.^ 

1  See  Ames,  Cases  on  Pleading,  ed.  of  1905,  6G.  —  Ed. 


544  JUDGMENTS 

LEE  V.   KNAPP  and  others. 

Supreme  Court  of  North  Carolina.     1884. 

[Reported  90  North  Carolina,  171.] 

Civil  Action  tried  at  Spring  Term,  1882,  of  Davidson  Superior 
Court,  before  Avery,  J. 

The  plaintiff  in  his  complaint  alleged  that  the  defendants  R.  B. 
Knapp,  William  Overaker  and  J.  W.  Lingenfelter  were  indebted  to 
the  plaintiff  in  the  sum  of  eleven  hundred  and  sixty-four  dollars 
and  fifteen  cents,  due  by  account,  and  promised  to  pay  the  same, 
and  that  said  account  is  for  goods  sold  and  delivered  to  the  defend- 
ants during  the  years  1879  and  1880,  and  that  no  part  thereof  had 
been  paid,  and  demanded  judgment  for  the  amount  alleged  to  be 
due  and  for  costs,  &c. 

Summons  was  served  upon  the  defendants  by  publication,  and 
at  the  return  term,  no  answer  having  been  filed,  judgment  by  de- 
fault and  inquiry  was  rendered  against  the  defendants  for  the  want 
of  an  answer,  and  at  the  spring  term,  1882,  a  jury  was  empaneled 
to  inquire  of  the  damages. 

The  plaintiff  introduced  one  Overaker,  who  testified  that  he 
bought  the  articles  set  out  in  the  complaint  as  agent  of  the  defend- 
ants, and  they  were  worth  the  amount  charged. 

The  defendants,  upon  cross-examination  of  this  witness,  pro- 
posed to  show  by  him  "  that  the  defendants  organized  as  the 
Thomasville  Gold  and  Silver  Mining  Company,  and  afterwards 
bought  the  articles  as  an  incorporated  company,"  and  stated  that 
they  offered  to  prove  this  with  a  view  of  showing  that  the  plaintiff 
was  only  entitled  to  recover  nominal  damages.  The  plaintiff 
objected  to  the  evidence,  the  objection  was  sustained,  and  defend- 
ants excepted. 

The  defendants  proposed  to  show  further,  by  the  same  witness, 
that  the  defendant  Lingenfelter  was  president  of  the  company 
incorporated  in  the  state  of  Pennsylvania,  and  that  the  defendant 
Knapp  was  treasurer  and  secretary,  and  that  they  as  officers  on 
behalf  of  said  company  gave  instructions  to  the  witness  to  buy  the 
goods,  with  the  view  of  taking  the  position  (if  true)  that  the 
defendants  were  only  liable  for  nominal  damages.  Objection  by 
the  plaintiff  was  sustained,  and  the  defendants  excepted. 

The  plaintiff  then  introduced  as  a  witness  his  clerk,  who  had 
made  out  the  account  sued  on,  and  who  testified  that  it  was  cor- 
rect, and  the  defendant  Knapp,  with  the  defendant  Overaker,  came 


LEE   V.    KNAPP  545 

into  the  store  and  told  witness  to  let  said  Overaker  have  whatever 
he  called  for.  Defendants'  counsel  then  proposed  to  ask  this  wit- 
ness "  if  he  did  not  charge  the  articles  in  the  books  to  the  Eureka 
Mining  Company,  and  if  he  did  not  understand  that  the  articles 
were  sold  to  the  Eureka  Mining  Company  when  they  were  de- 
livered —  stating  that  the  evidence  was  offered  with  the  view  (if 
true)  of  insisting  that  the  plaintiff  was  only  entitled  to  nominal 
damages."  Objection  by  the  plaintiff  was  sustained  by  the  court, 
and  the  defendants  excepted. 

There  was  a  verdict  for  the  plaintiff  for  the  amount  claimed  in  the 
complaint.     Judgment;  appeal  by  defendants. 

Ashe,  J.  The  exceptions  taken  by  the  defendants  to  the  ruling 
of  His  Honor  in  excluding  the  evidence  offered  bj^  them  were  prop- 
erly overruled  by  the  court.  The  defendants  proposed  to  prove 
that  the  articles  alleged  to  have  been  purchased  by  them  were  not 
bought  by  them,  but  by  one  or  the  other  of  the  two  corporations, 
in  one  of  which  they  held  official  positions.  The  evidence  was  of 
such  a  character  that,  if  the  facts  proposed  to  be  proved  had  been 
set  up  in  an  answer  filed  by  them  and  sustained  by  proof,  it  would 
undoubtedly  have  defeated  the  plaintiff's  action. 

And  it  is  settled  that  on  an  inquiry  of  damages  upon  a  judgment 
by  default,  nothing  that  would  have  amounted  to  a  plea  in  bar  to 
the  cause  of  action  can  be  given  in  evidence  to  reduce  the  damages 
(Garrard  v.  Dollar,  4  Jones,  175),  and  the  reason  given  for  the  rule 
is,  that  to  allow  such  evidence  after  a  judgment  by  default  on  an 
inquir}^  of  damages,  would  take  the  plaintiff  by  surprise  and  pre- 
vent him  from  meeting  the  defendant  upon  equal  terms  with  respect 
to  the  evidence,  whereas  when  such  defense  is  set  up  in  the  answer, 
the  plaintiff  has  notice  of  the  defense  and  may  prepare  to  meet  it. 

The  plaintiff  alleged  in  his  complaint  that  the  goods  mentioned 
therein  were  bought  by  the  defendants,  and  the  judgment  by  de- 
fault admits  all  the  material  allegations  properly  set  forth  in  the 
complaint,  and  of  course  everything  essential  to  establish  the  right 
of  the  plaintiff  to  recover.  Any  testimony  therefore  tending  to 
prove  that  no  right  of  action  existed  against  the  defendants,  or 
denying  the  cause  of  action,  is  irrelevant  and  inadmissible  on  the 
inquiry  of  damages.     Garrard  v.  Dollar,  supra. 

In  this  case  the  action  was  in  nature  of  assumpsit  for  goods  sold 
and  delivered,  and  the  specific  articles  were  not  set  forth  in  the 
complaint.  The  judgment  by  default  admitted  the  plaintiff  had 
cause  of  action  against  the  defendants  and  would  have  been  en- 
titled to  nominal  damages  without  any  proof;    but  in   seeking 


546  JUDGMENTS 

substantial  damages,  he  was  required  to  make  proof  of  the  delivery 
of  the  articles  and  their  value.  This  the  plaintiff  did,  and  there 
was  no  competent  evidence  offered  by  the  defendants  to  reduce  the 
damages.  The  evidence  offered  by  them  only  went  to  the  cause 
of  action,  which  being  admitted  by  the  judgment  by  default,  the 
plaintiff  was  entitled  to  recover  the  value  of  the  amount  of  goods 
proved  to  have  been  delivered.  Swepson  v.  Summey,  64  N.  C, 
293;   Parker  v.  House,  66  N.  C,  374. 

There  is  no  error.  The  judgment  of  the  superior  court  is 
affirmed. 

No  error.    Affirmed.^ 

HOPKINS   et  at.   v.   LADD. 
Supreme  Court  of  Illinois.     1864. 

[Reported  35  Illinois,  178.] 

Appeal  from  the  Circuit  Court  of  Kendall  county;  the  Hon. 
Madison  E.  Hollister,  Judge,  presiding.  .  .  . 

Breese,  J. 2  This  was  an  action  of  debt  on  an  ordinary  replevin 
bond  brought  by  the  sheriff  of  Kendall  county  for  the  use  of  Ward 
against  the  obligors.  The  court  gave  judgment  on  the  defendants' 
demurrer  to  the  plaintiff's  declaration  for  the  amount  of  the 
penalty  of  the  bond,  and  proceeded  to  assess  the  damages,  where- 
upon the  defendant  objected  to  an  assessment  of  damages  without 
a  jury.  The  court  overruled  the  objection,  to  which  the  defendant 
excepted,  and  has  brought  the  case  here  and  assigns  this  as  one  of 
the  principal  errors. 

By  section  15  of  the  practice  act,  it  is  provided,  in  all  cases  where 
interlocutory  judgment  shall  be  given  in  any  action  brought  upon  a 
penal  bond  or  upon  any  instrument  of  writing  for  the  payment  of 
money  only,  and  the  damages  rest  in  computation,  the  court  may 
refer  it  to  the  clerk  to  assess  and  report  the  damages,  and  may 
enter  final  judgment  therefor  without  a  writ  of  inquiry  and  without 
impanneling  a  jury  for  that  purpose;  and  in  all  other  actions  where 
judgment  shall  go  by  default,  the  plaintiff  may  have  his  damages 
assessed  by  the  jury  in  court.      Scates'  Comp.  261,  262. 

This  was  tlie  general  law  up  to  February  14,  1863,  on  which  day 
the  legislature  passed  this  law :  In  all  suits  in  the  courts  of  record 

1  Compare  Martin  v.  N.  Y.  &  N.  E.  R.  R.  Co.,  02  Conn.  331,  25  Atl.  239; 
Cook  V.  Skelton,  20  111.  107.  —  Ed. 

2  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  —  Ed. 


RAYMOND  V.    DANBURY  &  NORWALK  R.  R.  CO.       547 

of  this  State  upon  default,  where  a  writ  of  inquiry  has  heretofore 
been  required  to  assess  the  damages,  it  shall  be  lawful  for  the  court 
to  hear  the  evidence  and  assess  the  damages  without  a  jury  for 
that  purpose;  provided  that,  if  either  party  shall  claim  a  jury, 
the  damages  shall  be  assessed  as  heretofore.  Sess.  Laws  of  1863, 
p.  47. 

But  it  will  be  observed  that  in  1857,  a  special  law  applicable  to 
the  thirteenth  judicial  circuit  was  passed,  authorizing  the  court 
without  a  jury,  to  assess  damages  in  all  cases  of  default.  Scates' 
Comp.  637;  and  by  an  act  passed  February  18,  1859,  it  was  pro- 
vided that  the  practice  in  the  Circuit  Court  of  Kendall  county, 
should  be  the  same  in  all  respects  as  that  in  the  thirteenth  judicial 
circuit.  Session  Laws,  1859,  page  58.  This  is  a  mere  matter  of 
practice,  none  will  deny,  and  being  so,  the  assessment  of  damages 
could  be  made  by  the  court  without  a  jury.  The  idea  that  a  party 
has  a  constitutional  right  to  have  a  trial  by  jury  is  not  controverted. 
Here  was  no  trial  in  any  sense  of  that  term.  The  defendant  has 
declined  putting  his  case  on  trial  by  abiding  the  judgment  on  the 
demurrer.  The  inquiry  afterwards  involved  no  consideration  of 
any  right  of  the  defendant.  His  position  was  fixed  by  the  judg- 
ment on  the  demurrer,  no  issue  of  fact  was  presented.  The  law  of 
1859  conferred  on  the  Circuit  Court  of  Kendall  county  full  au- 
thority to  asssess  the  damages  even  against  the  defendant's  objec- 
tions, and  there  was  no  error  in  that  respect.  .  .  . 

Judgment  affirmed. 


RAYMOND  V.   THE  DANBURY  &  NORWALK   RAIL- 
ROAD  COMPANY. 

Circuit  Court  of  the  United  States,  District  of 
Connecticut.     1877. 

[Reported  43  Connecticut,  596.]  ^ 

Trespass  on  the  case:  brought  to  the  Circuit  Court  of  the 
United  States  for  the  District  of  Connecticut.  The  defendants 
suffered  a  default,  and  the  plaintiff  moved  for  a  hearing  in  damages 
before  the  jury.  The  motion  was  argued  at  the  September  Term, 
1876,  before  Shipman,  District  Judge. 

Shipman,  i}  This  is  an  action  of  tort  to  recover  damages  for 
an  injury  to  the  plaintiff,  arising  from  the  negligence  of  the  defend- 

»  Reported  also  Fed.  Cas.  No.  1159.3,  14  Blatchf.  133.  —  Ed. 
*  A  part  of  the  opinion  is  omitted.  —  Ed. 


548  JUDGMENTS 

ants.  The  defendants  have  suffered  a  default,  and  have  thereby- 
admitted  a  cause  of  action  as  alleged,  but  not  the  alleged  extent  of 
the  injury,  and  the  question  now  before  the  court  is  as  to  the 
tribunal  by  which  the  quantum  of  damages  is  to  be  ascertained. 
The  plaintiff  insists  that  he  has  a  constitutional  right  to  have  the 
questions  of  fact  in  regard  to  damages  determined  by  a  jury,  while 
the  defendants  assert  that,  in  accordance  with  the  practice  of  the 
state  courts  in  Connecticut,  the  damages  are  to  be  assessed  by  the 
court. 

The  seventh  amendment  to  the  constitution  of  the  United  States 
provides  that  "  in  suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States,  than  according  to  the 
rules  of  the  common  laAv."  By  the  first  clause  of  the  amend- 
ment, the  right  of  trial  by  jury,  in  common  law  actions,  was  guar- 
anteed. The  right  and  the  same  right  of  jury  trial  which  then 
existed  was  to  remain  undisturbed.  In  some  of  the  state  con- 
stitutions the  same  idea  is  expressed  by  the  phrase  "  shall  remain 
inviolate." 

By  the  common  law,  at  the  date  of  the  adoption  of  the  con- 
stitution, the  trial  of  all  issues  of  fact  must  be  by  a  jury.  By  issues 
of  fact  are  meant  questions  of  fact,  as  distinguished  from  questions 
of  law,  which  the  result  of  the  pleadings  in  each  case  shows  to  be  in 
dispute  or  controversy  between  the  parties,  and  a  jury  trial  in 
issues  of  fact  was  the  right  of  the  litigant.  In  pursuance  of  the 
constitutional  right  guaranteed  by  the  seventh  amendment.  Con- 
gress provided,  in  the  twelfth  section  of  the  act  of  September  24th, 
1789,  that  the  trial  of  all  issues  of  fact  shall,  in  all  suits,  except 
those  of  equity  and  of  admiralty  or  maritime  jurisdiction,  be  by  a 
a  jury. 

But  the  assessment  of  damages  upon  a  default,  either  in  actions 
of  tort  or  of  contract,  stood  upon  a  different  footing  from  the  trial 
of  issues  of  fact.  In  the  early  history  of  the  common  law  the  sub- 
ject of  the  ascertainment  of  damages  was  in  some  confusion.  The 
courts  frequently  fixed  the  amount  of  damages  on  a  judgment  by 
default  and  on  demurrer.  Rollc's  Abridgment,  tit.  Damages. 
And  "  though  the  justices  use  to  award  inquest  of  damages,  when 
they  give  judgment  by  default,  yet  they  may  give  damages  if  they 
will."  Sedgwick  on  Damages,  704;  Viner,  Abr.,  Damages  I. 
Courts  had  also  the  right  of  revising  the  amount  of  damages 
which  had  been  assessed  upon  a  writ  of  inquiry. 


RAYMOND  V.    DANBURY  &  NORWALK  R.  R.  CO.       549 

In  1765,  the  date  of  the  pubUcation  of  the  first  volume  of  Black- 
stone's  Commentaries,  the  practice  had  become  settled  that  upon  a 
default  damages  should  be  assessed  upon  a  writ  of  inquiry  by  a 
sheriff's  jury,  but  "  a  practice  was  established  in  the  courts  of 
King's  Bench  and  Common  Pleas,  in  actions  where  judgment  is 
recovered  by  default  upon  a  bill  of  exchange,  or  a  promissory  note, 
to  refer  it  to  the  master  or  prothonotary,  to  ascertain  what  is  due 
for  principal,  interest  and  costs,  whose  report  supersedes  the  neces- 
sity of  a  writ  of  inquiry."  3  Black.  Com.,  note  on  p.  397.  In 
1848,  before  the  enactment  of  the  statute  of  15  and  16  Vict.,  in 
regard  to  the  ascertaiimaent  of  damages  by  a  master  in  actions  of 
contract,  it  is  said,  in  Whitaker  v.  Harold,  an  action  of  covenant, 
12  Jurist,  395,  that  the  court  of  Queen's  Bench  had  the  power  to 
assess  damages  on  demurrer  or  default  without  the  intervention  of  a 
jury. 

The  assessment  of  damages  by  a  jury  in  actions  of  tort  was  how- 
ever a  matter  of  practice  and  not  of  right.  Chief  Justice  Wilmot 
held  in  1770,  as  had  been  previousl}-  declared  in  1764,  that  a  writ 
of  inquiry,  in  an  action  of  tort,  is  an  inquest  of  office,  to  inform  the 
conscience  of  the  court,  which  could  itself  have  assessed  the 
damages,  without  any  inquest.  Beardmore  v.  Carrington,  2  Wils., 
244;  Bruce  v.  Rawlins,  3  Wils.,  61;  2  Finlason's  Reeves's  Historj' 
of  English  Law,  610.  .  .  . 

The  practice  in  this  state  at  the  date  of  the  adoption  of  the  con- 
stitution, in  regard  to  the  assessment  of  damages,  is  easil}^  ascer- 
tained. Judge  Swift,  in  his  System,  published  in  1796,  says:  — 
"  Our  courts  possess  the  same  power  to  assess  damages  as  a  jury  in 
England,  upon  a  writ  of  inquiry  issued  to  the  sheriiT  for  that  pur- 
pose. There,  in  these  cases,  the  court  must  issue  a  wTit  to  the 
sheriff,  commanding  him  by  twelve  men  to  inquire  into  the  damages 
and  make  return  to  the  court,  which  process  is  called  a  wTit  of 
inquiry.  The  sheriff  sits  as  judge,  and  there  is  a  regular  trial  by 
twelve  jurors  to  assess  the  damages.  This  mode  of  proceeding 
must  be  productive  of  expense  and  delay,  and  the  practice  of  this 
state,  introduced  by  our  courts  without  the  authoritj^  of  a  statute, 
of  assessing  the  damages  themselves,  without  the  intervention  of 
a  jury,  is  one  of  the  many  instances  in  which  we  have  improved 
upon  the  common  law  of  England."  2  Swift's  System,  268. 
This  practice  of  the  courts  was  afterwards  sanctioned  by  statute 
(Revision  of  1821,  sect.  59,  p.  50),  and  has  remained  the  law  of  the 
state  ever  since. 


550  JUDGMENTS 

The  practice  of  the  United  States  courts  in  the  different  circuits 
has  not  been  uniform.  The  more  common  method  has  been  to 
assess  damages  by  a  jury,  upon  a  writ  of  inquiry,  but  it  is  believed 
that  the  practice  has  conformed  to  the  usage  of  the  state  in  which 
the  Circuit  Court  was  held.  2  Abbott's  Practice,  50.  In  this 
district,  neither  the  custom  of  calling  in  a  marshal's  jury  to  assess 
damages,  nor  the  assessment  by  a  petit  jury  under  the  direction  of 
the  court,  has  prevailed. 

The  conclusion  is,  that  the  assessment  of  damages  by  a  jury 
upon  a  default  is  matter  of  practice  and  not  of  right;  and  that  the 
assessment  should  be  made  in  this  case  according  to  the  uniform 
practice  of  the  state  courts. 

Let  the  damages  be  assessed  by  the  court,  or  if  the  parties  agree, 
by  the  clerk,  as  committee  to  find  and  report  the  facts  and  the 
amount  of  damages.^' 


Section  IV. 

Judgments  by  Confession. 

HAZEL,   Assignee  of  MONCUR,   v.   JACOBS. 

Court  of  Errors  and  Appeals  of  New  Jersey.     1910. 

[Reported  78  New  Jersey  Law,  459.] 

Reed,  J.  This  writ  brings  up  a  judgment  entered  upon  a  find- 
ing of  the  trial  judge  sitting  without  a  jury.  The  action  was 
brought  in  the  Cumberland  County  Circuit  Court  and  resulted  in  a 
judgment  for  the  plaintiff.  The  action  below  was  brought  to 
recover  the  amount  of  a  judgment  entered  upon  a  promissory  note 
before  a  justice  of  the  peace  in  the  State  of  Delaware,  which  judg- 
ment was  duly  docketed  in  the  Superior  Court  of  said  state  at 
Dover,  in  the  county  of  Kent. 

The  note  upon  which  the  judgment  was  entered  was  given  to 
one  Frank  Moncur,  and  by  him  assigned  to  William  B.  Hazel, 
who  caused  the  judgment  below  to  be  thereafter  entered.  The 
judgment  was  entered  by  virtue  of  a  warrant  of  attorney,  and  the 
following  is  a  copy  of  the  note  and  the  warrant: 

"  I,  George  W.  Jacobs,  promise  and  oblige  myself,  my  heirs, 
executors  or  administrators,  to  pay  Frank  Moncur,  his  executors, 

1  Central,  etc.,  R.  R.  Co.  v.  Morris,  68  Tex.  49,  3  S.  W.  457;  contra.  See  20 
L.  R.  A.  (N.  s.),  1;  24  Cyc.  140.  —  Ed, 


HAZEL  V.    JACOBS  551 

administrators,  or  assigns,  the  sum  of  seventy  dollars  ($70.00) 
lawful  money  of  the  State  of  Delaware  with  lawful  interest,  for 
value  received,  on  or  before  the  first  day  of  November,  a.d.  1889. 

"  And  further,  I  do  hereby  authorize  and  empower  any  justice 
of  the  peace  within  the  State  of  Delaware  or  elsewhere  to  enter 
judgment  on  the  above  obligation  without  process,  against  me, 
my  heirs,  executors  or  administrators,  at  the  suit  of  the  said  Frank 
Moncur,  his  executors,  administrators  or  assigns,  at  any  time  after 
the  date  hereof,  with  stay  of  execution  till  the  first  day  of  Novem- 
ber, A.D.  1889,  and  I  do  hereby  release  all  and  all  manner  of  error 
or  errors  in  any  such  judgment  and  in  the  execution  to  be  issued 
thereon. 

"  In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 
first  day  of  May,  a.d.  one  thousand  eight  hundred  and  eighty-nine. 

"  George  W.  Jacobs.     [Seal.] 

"  Signed,  sealed  and  delivered  in  the  presence  of 

"  George  N.  Donnelly." 

The  entry  of  judgment  is  in  the  following  form: 

"  Jan.  31,  1901.  "  Action    of    debt    on    specialty 

459,      William  B.  Hazel,  with  warrant  of  attorney  to  enter 

Assignee  of  Frank  Moncur,     judgment    against    this    defendant 

V.  without  process  and  release  of  error 

George  W.  Jacobs.  for  $70.00,  int.  from  Nov.  1,  1889. 

"  And  now,  to  wit,  this  31st  daj-  of  January,  a.d.  1901,  the  note 
with  warrant  of  attorney  is  received  and  filed  and  thereupon  judg- 
ment is  hereby  given  in  favor  of  said  plaintiff,  and  against  George 
W.  Jacobs,  defendant,  for  seventy  dollars,  with  interest,  from 
November  1,  a.d.  1889,  and  fifty  cents  costs. 

"John  B.  Hutton,  J.  P." 

To  the  declaration  upon  this  judgment  the  defendant  pleaded 
payment  of  the  judgment.^  He  also  pleaded  that  he  was  never 
served  with  any  process  in  the  state  in  which  the  said  judgment  was 
obtained,  and  that  he  did  not  appear  to  the  said  suit  in  person  or  by 
attorney,  and  that  he  was  not  resident  nor  present  within  the  juris- 
diction of  the  said  court  in  which  said  judgment  was  rendered, 
and  that  John  B.  Hutton,  justice  of  the  peace,  and  one  J.  H. 
Hughes,  attorney-at-law,  appeared  for  the  defendant  in  the  said 
suit  and  entered  judgment  against  the  defendant,  but  that  neither 
was  authorized  by  the  defendant  so  to  do. 

1  A  part  of  the  opinion,  in  which  the  court  held  that  this  defense  was  not 
available,  is  omitted.  —  Ed. 


552  JUDGMENTS 

Upon  the  trial  of  the  present  action  an  exemplified  copy  of 
the  Delaware  judgment  was  put  in  evidence,  also  a  copy  of  the 
statute  of  Delaware  permitting  the  entry  of  such  judgment  by 
a  justice  of  the  peace  upon  warrant  of  attorney.  It  was  also 
proved  that  Hazel  was  the  holder  by  assignment  of  the  note  in 
question,  .  .  . 

The  defect  alleged  is  that  there  was  an  absence  of  jurisdiction 
over  the  defendant,  Jacobs,  in  that  there  was  no  legal  service  of 
process  upon  him,  and  no  appearances  by  him  or  by  any  attorney 
authorized  to  so  appear.  This  raises  the  question  whether  a 
judgment  entered  ^vithout  process  or  appearance,  but  entered  in 
conformity  with  the  authority  given  by  a  warrant  of  attorney 
executed  by  the  defendant,  confers  jurisdiction  upon  a  court  to 
enter  a  judgment  which  is  unassailable  collaterally  in  both  domestic 
and  foreign  jurisdictions. 

It  is  not  denied  that  the  entrj^  of  the  judgment  by  the  justice  of 
the  peace  in  the  State  of  Delaware  was  upon  its  face  regular,  and 
in  conformity  with  the  statutes  of  that  state.  It  is  not  denied  that 
the  authority  given  by  the  warrant  of  attorney  conferred  upon  the 
justice  of  the  peace  of  the  State  of  Delaware  and  elsewhere  power 
to  enter  judgment  upon  the  note  without  process.  It  cannot  be 
denied  that  a  partj^  can  waive  his  right  to  have  a  suit  begun  against 
him  by  process.     Crosby  v.  Washburn,  37  Vroom  494. 

Nor  can  it  be  denied  that  the  warrant  of  attorney  authorizing 
another  to  appear  and  enter  j  udgment  without  process  is  a  waiver 
of  such  right.  In  the  words  of  Chief  Justice  Ruger,  in  delivering 
the  opinion  in  the  case  of  Teel  v.  Yost,  128  N.  Y.  387:  "  That  a 
power  so  conferred  is  the  equivalent  of  process  is  entirely  settled. 
In  all  cases  where  such  an  authority  exists,  it  is  simply  a  question 
as  to  what  the  principal  has  authorized  to  be  done  in  his  name,  and 
does  not  involve  any  of.  the  questions  arising  in  an  action  in 
invitum  against  resident  or  non-resident  defendants." 

The  courts  of  this  state  have  recognized  the  conclusive  character 
of  foreign  judgments  entered  wdthout  process,  but  upon  the 
authorization  of  a  warrant  of  attorney  to  appear  for  the  defendant. 
Hendrickson  v.  Fries,  16  Vroom  555;  Schelmerdine  v.  Lippincott, 
40  Id.  82. 

Both  of  these  cases  involved  actions  upon  judgments  so  entered 
in  the  State  of  Pennsylvania. 

The  same  rule  prevails  in  Massachusetts,  Henry  v.  Estes,  127 
Mass.  474;  Van  Norman  v.  Gordon,  172  Id.  576. 


HAZEL   V.    JACOBS  553 

So  in  the  Federal  Supreme  Court  it  is  regarded  as  settled  that 
if  the  authority  to  enter  a  judgment  is  strictly  pursued,  the  judg- 
ment is  entitled  to  credit  everywhere. 

In  National  Exchange  Bank  of  Tiffin  v.  Wiley,  195  U.  S.  257,  it 
was  held  that  where  a  warrant  authorized  the  entry  of  judgment  in 
favor  of  the  holder  of  a  promissory  note,  it  could  be  showTi  in  an 
action  upon  the  judgment  elsewhere  that  appearance  was  by  one 
not  the  holder,  and  in  Grover  &  Baker  Co.  v.  Radcliffe,  137  Id.  287, 
the  judgment  was  held  irregular  because  entered  without  the 
appearance  of  an  attorney,  when  the  power  conferred  was  only 
that  any  attorney  could  enter  judgment.  Both  of  these  cases 
assumed  as  a  settled  doctrine  that  where  the  authority  conferred 
was  strictly  pursued,  the  judgment  entered  was  entitled  to  full 
faith  and  credit  in  foreign  jurisdictions. 

The  judgment  in  this  case  was  entered  by  a  justice  of  the  peace, 
and  the  power  was  given  to  the  justice  of  the  peace  to  execute  this 
judicial  act.  The  want  of  process  or  of  other  appearance  was 
waived. 

The  judgment  below,  therefore,  in  favor  of  the  plaintiff  for  the 
amount  of  the  judgment,  should  be  affirmed.^ 

For  affirmance  —  The  Chancellor,  Chief  Justice,  Garrison, 
SwAYZE,  Reed,  Trenchard,  Parker,  Bergen,  Voorhees, 
MiNTURN,  BoGERT,  Vredenburgh,  Vroom,  Gray,  Dill,  Congdon, 
JJ.  16. 

For  reversal.     None. 

1  Van  Norman  v.  Gordon,  172  Mass.  576,  53  N.  E.  267,  44  L.  R.  A.  840; 
First  National  Bank  v.  Garland,  109  Mich.  515,  67  N.  W.  559,  33  L.  R.  A.  83; 
Teel  V.  Yost,  128  N.  Y.  387,  28  N.  E.  353,  13  L.  R.  A.  796,  accord.  See  also 
Cuykendall  v.  Doe,  129  la.  453,  105  N.  W.  698,  3  L.  R.  A.  (n.  s.),  449;  2  Black, 
Judgments,  2d  ed.,  sec.  868;  2  Freeman,  Judgments,  4th  ed.,  sec.  558a;  23  Cyc. 
699.  Compare  Acme  Food  Co.  v.  Kirsch,  166  Mich.  433,  131  N.  W.  1123,  38 
L.  R.  A.  (n.  s.),  814. 

On  the  question  of  the  validity  at  common  law  of  a  warrant  of  attorne}'  to 
confess  judgment,  see  French  v.  Wilier,  126  111.  611,  18  N.  E.  811,  2  L.  R.  A. 
717,  9  Am.  St.  Rep.  884;  First  Nat.  Bank  v.  White,  220  IMo.  717,  120  S.  W.  36, 
132  Am.  St.  Rep.  612,  16  Ann.  Cas.  889;  A.  B.  Farquhar  Co.  v.  Dehaven,  70 
W.  Va.  738,  75  S.  E.  65,  40  L.  R.  A.  (n.  s.),  956. 

The  judgment  is  not  valid  unless  the  authority  in  the  power  of  attorney  is 
strictly  followed.  Grover  &  Baker  Sewing  Machine  Co.  v.  Radcliffe,  137 
U.  S.  287,  34  L.  ed.  670,  11  S.  Ct.  92;  In  re  Raymor's  Estate,  165  Mich.  259, 
130  N.  W.  263.     Compare  Lea  v.  Yates,  40  Ga.  56.  —  Ed. 


554  JUDGMENTS 

ELLIOT,    LEE  and  others  v.  WOODHULL. 

Supreme  Court  of  New  Jersey.     1830. 

[Reported  7  Halsied,  126.] 

E.  Vanarsdale,  moved  to  enter  judgment  in  this  case  upon  a 
cognovit  actionem  of  the  defendant,  and  stated  that  a  capias  had 
been  regularly  issued  in  this  case,  and  served  upon  the  defendant, 
and  a  declaration  filed  by  the  plaintiff.  He  said  he  did  not  con- 
sider this  case  as  coming  within  the  supplement  to  the  act  entitled, 
''  An  act  directing  the  mode  of  entering  judgments  upon  bonds 
with  warrants  of  attorney  to  confess  judgments,"  passed  Feb- 
ruary 19th,  1829,  and  that  the  judgment  might  be  entered  without 
an  affidavit  of  the  plaintiff,  stating  that  the  debt  "  was  justly  and 
honestly  due,"  &c.  as  required  by  that  supplement.  But  to  put  an 
end  to  all  doubt  upon  the  subject,  he  had  thought  it  prudent  to 
present  the  question  to  the  court. 

By  the  Court.  —  The  case  is  not  within  the  act  of  February 
19th,  1829;  therefore  the  judgment  may  be  entered  without  the 
affidavit  therein  mentioned.^ 


KINDIG   V.   MARCH. 
Supreme  Court  of  Indiana.     1860. 

[Reported  1.5  Indiana,  248.] 

Perkins,  J.  Kindig  gave  a  power  of  attorney  to  Chamberlain, 
to  confess  a  judgment  in  favor  of  March,  for  a  debt  due  to  him. 

The  power  was  duly  executed  and  proved.  We  are  satisfied  of 
this  from  an  examination  of  the  record. 

When  judgment  was  about  to  be  entered  in  execution  of  the 
power,    Kindig   presented   to   the   Court   a   revocation  of  it,  on 

1  In  French  v.  Wilier,  126  111.  611,  614,  18  N.  E.  811,  2  L.  R.  A.  717, 
9  Am.  St.  Rep.  884,  the  court  said:  "  There  were  at  common  law,  besides  the 
judgment  by  default,  two  methods  of  obtaining  judgment  without  trial.  One 
by  a  confession  of  judgment  under  a  warrant  of  attorney,  and  the  other  upon  a 
cognovit  actionem,  signed  by  the  defendant  in  the  action.  The  warrant  of 
attorney  authorized  the  attorney  named  therein  to  appear  for  the  defendant 
and  receive  a  declaration  in  an  action  for  debt,  and  to  confess  the  action  or 
suffer  judgment  by  iiil  dicit,  or  otherwise,  to  pass.  .  .  .  The  cognovil  actionem 
was  not  an  authority  given  liefore  the  action  commenced,  but  was  a  confession 
signed  by  the  defendant  after  the  process  was  issued."  See  11  Encyc.  of 
Fl.  &  Pr.  973;   1  Black,  Judgments,  2d  ed.,  chap.  III.  —  Ed. 


KINDIG   V.    MARCH  555 

the  ground  that  it  was  for  too  large  an  amount.  The  Court 
disregarded  the  revocation,  and  directed  the  judgment  to  be 
entered. 

A  power  of  attorney  to  confess  judgment  is  not  revocable  by  act 
of  the  party.  See  Story  on  Agency,  §  477;  2  Archbold's  Pr.  p.  21. 
But  if  any  fact  affecting  its  validity  be  alleged,  the  Court  will  per- 
mit an  issue  to  be  formed  and  tried,  and  act  in  the  premises  accord- 
ingly, annulling  the  warrant  or  reducing  the  amount  of  judgment 
upon  it,  as  the  case  proved  may  require.  In  this  case,  the  defend- 
ant may  yet  have  the  judgment  corrected,  on  complaint  filed  and 
heard,  as  in  other  cases.  Archbold,  supra;  15  Petersdorf,  pp.  366, 
367,  368. 

Per  Curiam.  —  The  appeal  is  dismissed,  with  costs. ^ 

1  See  Evans  v.  Fearne,  Crenshaw  &  Co.,  16  Ala.  689,  23  Cyc.  707.  —  Ed. 


CHAPTER  XI. 

PROCEEDINGS  IN  THE  TRIAL  COURT  AFTER  JUDGMENT. 

OBENCHAIN   v.   COMEGYS. 

Supreme  Court  of  Indiana.    1861. 

[Reported  15  Indiana,  496.] 

Appeal  from  the  Cass  Common  Pleas. 

Per  Curiam.  Suit  upon  a  note.  Judgment  by  default.  Appli- 
cation by  the  defendant  to  have  the  default  set  aside.  The  Court 
at  first  granted  the  application,  but  soon  after  reconsidered  the 
matter,  changed  its  judgment,  and  refused  to  set  the  judgment  by 
default  aside. 

The  records  of  the  Court  are  within  its  control  during  the  term, 
at  least  where  all  parties  still  remain  in  Court.  The  Court  had 
power  to  change  its  determination  on  the  point  of  opening  the 
judgment.  No  abuse  appears  in  this  case.  No  such  steps  had 
been  taken  as  precluded  the  Court  from  reconsidering  its  judgment. 
See  Boyd  v.  Blaisdell,  15  Ind.  p.  73. 

The  judgment  is  affirmed,  with  5  per  cent  damages  and  costs.^ 


BROWN   V.   BARTLETT. 

Supreme  Court  of  Alabama.     1841. 

[Reported  2  Alabama,  29.] 

This  suit  was  commenced  originally  before  a  justice  of  the  peace, 
by  the  defendant,  against  the  plaintiff  in  error,  in  which  the  former 
obtained  judgment  and  the  latter  removed  it  by  certiorari  to  the 
County  Court  of  Pike  County.  The  counsel  for  one  of  the  parties 
being  appointed  judge  of  the  County  Court,  the  cause  was  trans- 
ferred to  the  Circuit  Court  of  Pike  county  —  and  at  the  Spring 
term  1839,  of  that  Court  the  cause  was,  by  the  judgment  of  the 

1  See  23  Cyc.  860. 

"  During  the  torme  wherein  any  judiciall  act  is  done,  the  record  remaineth 
in  the  brest  of  the  judges  of  the  court,  and  in  their  remembrance,  and  therefore 
the  roll  is  alterable  during  that  terrne,  as  the  judges  shall  direct;  but  when  the 
terme  is  past,  then  the  record  is  in  the  roll,  and  admitteth  no  alteration, 
averment  or  proofe  to  the  contrarie."     Co.  Litt.  260o.  —  Ed. 

556 


BROWN    V.    BARTLETT  557 

Court,  dismissed  at  the  cost  of  the  plaintiff.  At  the  Fall  term, 
1840,  of  the  Court,  the  following  entry  appears,  "  ordered  by  the 
court  that  the  judgment  entered  in  this  case  at  the  Spring  term  of 
1839,  be  so  amended  as  to  make  the  defendant  liable  for  costs,  for 
which  execution  may  issue."  There  is  also  sent  up  with  the  record 
a  transcript  from  the  trial  docket  with  the  word  "  dismissed  " 
opposite  the  case,  and  a  certificate  by  the  clerk  that  the  word 
"  dismissed  "  found  on  the  trial  docket,  is  in  the  hand  writing  of 
the  presiding  judge,  and  that  no  other  memorandum  or  entry 
appears  in  relation  to  said  cause.  From  the  amended  j  udgment  the 
defendant  below  prosecutes  this  writ  of  error,  and  assigns  that 
there  was  no  authority  to  enter  such  judgment. 

Ormond,  J.  It  is  objected  for  the  plaintiff  in  error,  that  no 
amendment  can  be  made  in  a  judgment  after  an  interval  of  one 
term  —  such  is  not  the  law,  the  amendment  may  be  made  at  any 
time  if  the  evidence  is  in  existence,  which  will  authorize  it  to  be 
done.  In  the  case  of  Goldthwaite  v.  Wilkerson  [1  Stewt.  &  Por. 
159]  an  amendment  of  this  land  was  made  after  the  lapse  of  seven 
years. 

What  evidence  will  be  sufficient  to  authorize  the  amendment  of  a 
part  of  the  record  nunc  pro  tunc,  is  largel}^  discussed  in  the  case  of 
Moody  V.  Keenar,  9th  Porter,  252.  In  the  case  of  Thompson  & 
Miller  [2d  Stewart's  Rep.  470]  it  was  held  that  such  an  amendment 
could  not  be  made  on  oral  testimony,  and  was  only  authorized 
"  when  predicated  on  matters  of  record  or  some  entry  made  b}'  or 
under  the  authority  of  the  Court." 

If  we  were  at  liberty  to  notice  the  entry  on  the  trial  docket, 
which  the  clerk  states  was  a  memorandum  of  the  presiding  judge, 
(but  which  is  no  part  of  this  record)  it  would  not  justify  the  amend- 
ment made  in  this  case.  The  word  "  dismissed,"  if  it  indicates,  as 
it  must  be  held  to  do,  the  disposition  made  of  the  cause  at  the  first 
trial,  did  not  authorize  the  amendment,  as  the  judgment  entered  at 
the  trial  term  was  in  exact  accordance  with  it.  The  cause  could 
only  have  been  dismissed  by  the  plaintiff  and  at  his  own  cost, 
unless  by  the  agreement  of  the  defendant,  the  costs  were  to  be 
levied  against  him. 

There  does  not  appear  therefore  to  have  been  any  warrant  for 
the  amendment,  none  such  appears  in  the  record,  and  we  cannot 
presume  that  any  exists.  Let  the  judgment  of  the  Court,  amend- 
ing the  previous  judgment,  be  reversed.^ 

J  See  Albers  v.  Whitney,  1  Story  (U.  S.),  310;  1  Tidd,  Practice,  Oth  ed.,  71.3, 
714.     But  see  Balch  i'.  Shaw,  7  Cush.  (Mass.),  2S2;  Friiik  v.  Frink,  43  N.  H. 


558  PROCEEDINGS  AFTER  JUDGMENT 

DeKALB   county   v.   HIXON  et  al. 

Supreme  Court  of  Missouri.     1869. 

[Reported  44  Missouri,  341.] 

Currier,  J.  The  question  here  raised  relates  to  the  authority 
of  the  Circuit  Court  in  ordering  amendments  of  its  own  records. 
In  that  court  the  plaintiff  dismissed  as  to  one  of  the  defendants, 
and  the  court,  at  a  subsequent  term,  on  motion  of  the  remaining 
defendants,  dismissed  the  suit  as  to  them.  The  amended  trans- 
cript, brought  into  the  District  Court  on  certiorari,  shows  that 
when  the  court  directed  the  dismissal  it  also  ordered  final  judgment, 
which  the  clerk  omitted  to  enter  of  record. 

After  an  appeal,  and  while  the  cause  was  pending  in  the  District 
Court,  the  Circuit  Court  ordered  its  records  amended  so  as  to  show 
that  a  final  judgment  followed  the  order  of  dismissal;  the  record 
entry  of  the  judgment  being  made  nunc  pro  tunc.  The  defendants 
(plaintiffs  in  error)  objected  to  this  as  unwarranted  and  beyond  the 
jurisdiction  of  the  court. 

The  objection  is  not  well  taken.  The  court  had  lost  its  juris- 
diction of  the  case,  but  not  of  its  records.  It  had  authority,  as 
well  after  as  before  the  appeal,  to  amend  its  records  according  to 
the  truth,  so  that  they  should  accurately  express  the  history  of 
the  proceedings  which  actually  occurred  prior  to  the  appeal. 
Welch  V.  Damon,  11  Gray,  383;  Chichester  v.  Cande,  3  Cow.  42, 
note  a;  Mechanics'  Bank  v.  Minthorne,  19  Johns.  244;  Richardson 
V.  Mellish,  11  Eng.  C.  L.  173. 

The  collateral  effects  of  such  amendments,^  as  regards  liens  and 
the  rights  of  third  parties,  are  not  under  consideration.  Ladd  v. 
Couzins,  35  Mo.  513,  and  Stewart  v.  Stringer,  41  Mo.  400,  authori- 
ties relied  upon  by  the  defendants,  are  not  in  point.  In  these 
cases  the  things  proposed  to  be  done  were  rather  additions  to  the 
proceedings  than  amendments  of  the  records.      The  language  of 

508.     Compare  Coughran  v.  Gutcheus,  18  111.  390.     See  1  Black,  Judgments, 
2d  ed.,  sec.  165;   1  Freeman,  Judgments,  4th  ed.,  sec.  72. 

In  Frink  v.  Frink,  43  N.  H.  508,  515,  the  court  said:  "  We  think  it  clear, 
upon  the  authorities,  that  the  court  may  make  such  amendments  upon  any 
competent  legal  evidence,  and  that  they  are  the  proper  judges  as  to  the  amount 
and  kind  of  evidence  requisite  in  each  case  to  satisfy  them  what  was  the  real 
order  of  the  court,  or  the  actual  proceeding  before  it;  what  was  the  proper 
entry  to  he  made  on  the  docket,  and  how  the  record  should  he  extended. 
Where  there  is  nothing  more  to  rely  on  than  mere  memory,  the  court  will  act 
if  at  all  with  great  caution."  —  Ed. 


RADCLYFFE   V.    BARTON  559 

the  court  is  to  be  construed  in  connection  with  the  facts  of  the 
respective  cases  to  which  that  language  was  apphed.  The  parties 
proposed  to  bring  upon  the  record  fresh  facts  —  new  proceedings, 
which  had  not  been  recorded  because  they  had  not  occurred  until 
after  the  appeal.  In  fine,  they  proposed  to  deal  with  the  case,  and 
the  court  below  had  ceased  to  have  any  jurisdiction  over  that. 

The  action  of  the  District  Court  reversing  the  judgment  of  the 
Circuit  Court  is  affirmed.     The  other  judges  concur. 


RADCLYFFE   v.   BARTON. 

Supreme  Judicial  Court  of  Massachusetts.     1891. 

[Reported  154  Massachusetts,  157.] 

Writ  of  error,  issued  on  January  6,  1889,  to  reverse  a  judg- 
ment rendered  by  the  Superior  Court  at  July  term,  1879.  Plea, 
in  nullo  est  erratum. 

The  record  of  the  action  in  which  the  judgment  was  rendered, 
transmitted  by  the  Superior  Court,  showed  that  on  June  11,  1878, 
an  action  of  contract  upon  a  promissory  note  for  one  thousand 
dollars,  made  by  the  plaintiff  in  error  to  the  order  of  the  defendant 
in  error,  was  brought  by  the  latter  against  the  former,  the  ad 
damnum  of  the  writ  being  laid  at  three  hundred  dollars;  and  that 
at  the  July  term,  1878,  judgment  was  rendered  against  the  plaintiff 
in  error  on  his  default,  and  in  favor  of  the  defendant  in  error,  in  the 
sum  of  three  hundred  dollars,  together  with  the  costs  of  suit.  At 
the  July  term,  1879,  the  defendant  in  error  filed  a  motion  in  that 
court  to  vacate  the  judgment  so  rendered  by  default,  bring  the 
suit  forward,  and  increase  the  ad  damnum  in  the  writ  to  fifteen 
hundred  dollars.  This  motion  was  allowed  on  the  day  it  was  filed, 
and  at  the  same  time  judgment  was  rendered  in  the  case  in  favor  of 
the  defendant  in  error  for  $1,116.73  damages,  together  with  the 
costs  of  suit,  on  which  execution  was  duly  issued. 

The  assignment  of  errors  recited,  among  other  things,  that  the 
judgment  was  vacated,  the  action  brought  forward,  and  the  ad 
damnum  increased,  and  the  new  judgment  rendered,  without  notice 
to  the  plaintiff  in  error  of  the  motion  filed  by  tne  defendant  in 
error. 

The  case  was  submitted  to  this  court  on  agreed  facts,  reciting 
that  the  transcript  of  the  records  of  the  Superior  Court  was  cor- 
rect, and  that  an  action  of  contract  bad  been  brought  upon  the 


560  PROCEEDINGS   AFTER   JUDGMENT 

judgment  sought  to  be  reversed  within  six  years  prior  to  suing  out 
this  writ  of  error,  and  waiving  any  assignment  of  error  requiring 
other  evidence. 

Allen,  J.  The  cause  was  finally  disposed  of  by  the  entry  of 
judgment  for  three  hundred  dollars  on  the  default.  There  was 
no  fraud  nor  error  nor  mistake  in  the  entry  of  that  judgment,  as 
was  the  case  in  Edson  v.  Edson,  108  Mass.  590.  Stickney  v. 
Davis,  17  Pick.  169.  Capen  v.  Stoughton,  16  Gray,  364.  The 
term  of  court  had  closed.  Several  more  terms  had  also  passed. 
After  all  this,  the  court  on  a  mere  motion  assumed  to  vacate  the 
judgment,  to  bring  forward  the  action,  to  allow  an  amendment 
increasing  the  ad  damnum,  and  to  enter  judgment  against  the 
plaintiff  in  error  for  a  larger  sum.  We  need  not  consider  whether 
it  is  to  be  presumed  that  notice  of  the  motion  was  given  to  the 
plaintiff  in  error  or  not.  In  the  assignment  of  errors  he  sets  forth 
that  no  notice  was  given  to  him;  but  by  liis  agreement  he  waives 
this.  It  would  be  more  satisfactory  to  have  had  this  fact  proved, 
if  it  existed ;  but  whether  notice  was  given  or  not,  it  was  not  in  the 
power  of  the  court  at  that  time  to  vacate  the  judgment  on  a  mere 
inotion.  Mason  v.  Pearson,  118  Mass.  61.  Blanchard  v.  Ferdi- 
nand, 132  Mass.  389.  Wood  v.  Payea,  138  Mass.  61.  Pierce  v. 
Lamper,  141  Mass.  20.  Barnes  v.  Smith,  104  Mass.  363.  Mort- 
land  V.  Little,  137  Mass.  339.  See  also  Dudley  v.  Keith,  153  Mass. 
104.  We  need  not  consider  whether  it  might  have  been  done  on  a 
formal  petition,  under  the  Pub.  Sts.  c.  187,  §  17  (Pierce  v.  Lamper, 
ubi  supra),  or  on  a  writ  of  review.  Pub.  Sts.  c.  187,  §§  22,  25,  30, 
35.1 

The  judgment  for  three  hundred  dollars  was  properly  entered, 
and  the  plaintiff  in  error  has  no  ground  of  complaint  on  that  score. 
Jarvis  v.  Blanchard,  6  Mass.  4.  Storer  v.  White,  7  Mass.  448. 
Fairfield  v.  Burt,  11  Pick.  244.  That  judgment  therefore  will 
stand,  and  the  judgment  subsequently  entered  must  be  reversed. 

Judgment  reversed.'^ 

1  See  Mass.  R.  L.,  c.  193,  sees.  14-37,  for  the  present  law  of  Massachusetts. 
—  Ed. 

2  See  Pisa  v.  Rezek,  206  111.  344,  69  N.  E.  67;  Priest  v.  Axon,  93  Me.  34,  44 
Atl.  124;  Peake  v.  Redd,  14  Mo.  79;  Moore  v.  Hinnant,  90  N.  C.  163;  May  v. 
Stimson  Lumber  Co.,  119  N.  C.  96,  25  S.  E.  721.  —  Ed. 


CHAMBLEE    V.    COLE  561 

CHAMBLEE   et  al.   v.   COLE. 
Supreme  Court  of  Alabama.     1900. 
[Reported  128  Alabama,  649.] 

This  was  a  proceeding  by  petition  in  the  court  below  to  vacate 
a  decree  of  said  court  rendered  at  a  former  trial  by  which  a  home- 
stead exemption  was  set  apart  to  a  widow  and  minor  children 
before  administration.  The  petition  was  filed  by  appellee,  who 
alleges  she  is  an  heir  at  law  of  the  decedent.  It  was  alleged  and 
the  record  in  the  prol)ate  court  disclosed  that  the  petition  upon 
which  the  decree  sought  to  be  vacated  was  based,  contained  only 
the  following  allegation  as  to  the  real  estate  owned  by  the  decedent 
at  the  time  of  his  death,  to-wit:  "  He  owned,  without  any  incum- 
brance, a  plantation  which  does  not  exceed  160  acres,  or  two  thou- 
sand dollars  in  value."  Upon  the  hearing  of  this  petition  a  decree 
was  rendered  vacating  and  annulling  the  former  decree  by  which 
the  homestead  exemption  was  set  apart.  From  this  decree 
appellants  appeal,  and  assign  the  rendition  thereof  as  error. 

Tyson,  J.  It  is  well  settled  that  where  a  decree,  void  for  want 
of  jurisdiction,  has  been  rendered,  the  court  rendering  it  possesses 
the  inherent  power,  and  should  on  motion,  vacate  said  decree. 
It  is  a  nullity  and  the  court  may  at  any  subsequent  term  vacate  it. 
3  Brick.  Dig.  584,  §  124.  If  not  void,  the  court  has  no  power  to 
alter,  vary  or  annul  it  after  the  expiration  of  the  term  at  which  it 
was  rendered,  except  for  clerical  error  or  omission  on  evidence 
sho^\^l  by  the  record.  Baker  v.  Barchff,  76  Ala.  414;  Buchanan  v. 
Thomason,  70  Ala.  401. 

It  is  equally  as  well  settled  that  where  the  court,  whose  jurisdic- 
tion is  questioned,  is  one  of  limited  jurisdiction,  it  must  appear 
from  the  face  of  the  proceedings  that  it  has  acted  within  the  scope 
of  its  jurisdiction.  In  other  words,  no  presumption  is  indulged, 
from  the  mere  exercise  of  jurisdiction,  of  the  existence  of  jurisdic- 
tional facts.  The}'  will  not  be  inferred,  but  must  affirmatively 
appear  from  the  record.  Pettus  v.  McLannahan,  52  Ala.  55; 
Joiner  v.  Winston,  68  Ala.  129.  To  quote  the  language  to  be  found 
in  Robertson  v.  Bradford,  70  Ala.  387:  "  Nothing  is  presumed  to  be 
within  the  jurisdiction  of  a  court  of  limited  jurisdiction  except  that 
which  is  so  expressly  alleged  and  affirmatively  appears  from  the 
record." 

The  jurisdiction  of  the  probate  court  to  set  apart  to  a  widow  and 
minor  children  exemptions  before  administration  (Code,  §  2097; 


562  PROCEEDINGS   AFTER   JUDGMENT 

Code  of  1886,  §  2562,  and  Acts,  1886-87,  p.  112),  is  conferred  by 
statute  alone  and  in  the  exercise  of  that  jurisdiction  it  is  a  court  of 
limited  jurisdiction.  It  is  necessary,  therefore,  that  the  juris- 
dictional facts  affirmatively  appear  from  the  record. 

The  petition  filed  by  the  widow  in  this  case,  upon  which  the 
probate  court  acted  and  which  is  the  basis  of  the  decree  entered 
by  that  court,  is  subject  to  the  same  infirmities  as  was  the  one  in  the 
case  of  Brooks  v.  Johns,  Admr.,  119  Ala.  412.  On  the  authority  of 
that  case,  the  proceedings  here  involved,  must  be  held  to  be  void. 
Being  void,  the  court  committed  no  error  in  vacating  them. 

Affirmed.^ 
[Stephen,  Pleading,  Williston's  edition,  *128-*131.] 

After  final  judgment  is  signed,  the  unsuccessful  party  may  bring 
a  writ  of  error;  and  this,  if  obtained  and  allowed,  and  if  notice  of  the 
allowance  be  served  before  execution,  suspends  (generally  speak- 
ing) the  latter  proceeding,  till  the  former  is  determined.  A  writ 
of  error  is  sued  out  of  Chancery,  directed  to  the  judges  of  the  court 
in  which  judgment  was  given,  and  commanding  them,  in  some 
cases,  themselves  to  examine  the  record;  in  others,  to  send  it  to 
another  court  of  appellate  jurisdiction,  to  be  examined,  in  order 
that  some  alleged  error  in  the  proceedings  may  be  corrected. 
The  first  form  of  writ,  —  called  a  writ  of  error  corarn  nobis  [or 
vohis]  —  is,  where  the  alleged  error  consists  of  matter  of  fact;  the 
second,  —  called  a  writ  of  error  generally  —  where  it  consists  of 
matter  of  law. 

When  a  writ  of  error  is  obtained,  the  whole  proceedings  to  final 
judgment  inclusive  are  then  always  actually  entered  (if  this  has  not 
before  been  done)  on  record;  and  the  object  of  the  writ  of  error  is 
to  reverse  the  judgment,  for  some  error  oi  fact  or  law  that  is  sup- 
posed to  exist  in  the  proceedings  as  so  recorded.  It  will  be  proper 
here  to  explain  in  what  such  error  may  consist. 

Where  an  issue  in  fact  has  been  decided,  there  is  (as  formerly 
observed)  no  appeal  in  the  English  law  from  its  decision,  except  in 
the  way  of  motion  for  new  trial;  and  its  being  wrongly  decided  is 
not  error,  in  that  technical  sense  to  which  a  writ  of  error  refers. 
So,  if  a  matter  of  fact  should  exist,  which  was  not  brought  into 
issue,  but  which,  if  brought  into  issue,  would  have  led  to  a  different 
judgment,  the  existence  of  such  fact  does  not,  after  judgment, 
amount  to  error  in  the  proceedings.  For  example  if  the  defendant 
has  a  release,  but  does  not  plead  it  in  bar;   its  existence  cannot, 

1  See  In  re  College  Street,  11  R.  I.  472;  23  Cyc.  905.  —  Ed. 


POWELL    V.    GOTT  563 

after  judgment,  on  the  ground  of  error  or  otherwise,  in  any  manner 
be  brought  forward.  But  there  are  certain  facts,  which  affect  the 
validity  and  regularity  of  the  legal  -proceeding  itself;  such  as  the 
defendants  having,  while  under  age,  appeared  in  the  suit  by  at- 
torney, and  not  by  guardian;  or,  the  phiintiff's  or  defendant's 
having  been  a  married  woman  when  the  suit  was  commenced. 
Such  facts  as  these,  however  late  discovered  and  alleged,  are 
errors  in  fact,  and  sufficient  to  reverse  the  judgment  upon  writ  of 
error.  To  such  cases  the  writ  of  error  coram  nobis  applies:  "  be- 
cause the  error  in  fact  is  not  the  error  of  the  judges,  and  reversing 
it  is  not  reversing  their  own  judgment."  ^ 


POWELL  V.   GOTT. 
Supreme  Court  of  Mlssouri.     1850. 

[Reported  13  Missouri,  458.) 

Napton,  J.  This  was  a  motion  to  set  aside  a  judgment  obtained 
against  an  infant  who  appeared  by  attorney.  The  judgment  was 
rendered  in  1841,  and  the  motion  was  made  in  1847,  about  two 
years  after  the  defendant  attained  his  majority.  The  motion  was 
supported  by  several  affidavits,  both  of  the  petitioners  and  others 
of  his  family  to  estabUsh  the  truth  of  the  facts  stated  therein. 

The  motion  was  overruled  by  the  circuit  court. 

This  is  in  the  nature  of  a  writ  of  error  coram  nobis.  The  object  of 
this  motion  is  to  correct  an  error  in  fact,  upon  which  certain  pro- 
ceedings in  law  have  been  based. 

The  objections  taken  to  the  motion  here,  are  first,  that  the 
motion  came  too  late,  ha\dng  been  made  after  the  infant  attained 
his  full  age;  ^  second,  that  our  statute  of  limitations  upon  writs  of 
error  and  the  8th  section  of  the  7th  article  of  the  act  concerning 
Practice  at  Law,  constitute  a  bar  from  lapse  of  time. 

The  section  above  referred  to  provides,  that  "  judgments  in  any 
court  of  record  shall  not  be  set  aside  for  irregularity,  on  motion, 
unless  such  motion  be  made  within  five  years  after  the  term  such 
judgment  was  rendered." 

»  See  23  Cyc.  883. 

Now  generally  the  relief  formerly  given  on  writ  of  error  coram  nobis  is 
given  on  a  simple  motion.  See  Harris  v.  Hardeman,  14  How.  (U.  S.),  334,  346; 
1  Black,  Judgments,  2d  ed.,  sec.  300;  1  Freeman,  Judgments,  4th  ed.,  sec.  94. 
—  Ed. 

^  The  opinion  of  the  court  on  this  objection  is  omitted.  —  Ed. 


564  PROCEEDINGS   AFTER   JUDGMENT 

This  section  we  deem  inapplicable  to  the  present  motion,  for  the 
reason,  that  the  entering  of  a  judgment  against  an  infant  is  not 
an  irregularity,  but  an  error.  Ex  parte  Toney,  11  Mo.  R.  663. 
Nor  do  we  think  the  limitation  of  five  years,  fixed  by  our  statute 
which  regulates  writs  of  error  to  the  supreme  court,  applicable, 
because  the  error  complained  of  here  is  not  one  of  law,  but  of  fact. 
The  whole  of  our  act  regulating  the  practice  in  the  supreme  court, 
and  writs  of  error  generally,  most  manifestly  is  intended  to  apply 
to  writs  brought  to  correct  errors  of  law.  There  is  no  limitation 
to  be  found  in  our  statute  book  to  a  writ  of  error  coram  nobis  — 
or  a  proceeding  to  correct  a  judgment  of  law  founded  upon  an  error 
of  fact.  The  rare  occurrence  of  such  proceedings  has  doubtless 
caused  them  to  be  overlooked  by  the  legislature.  The  courts  have 
no  power  to  supply  the  omission.  .  .  . 

Judgment  reversed  and  cause  remanded} 

[Blackstone,  Commentaries,  Book  III,  *  405.] 

An  audita  querela  is  where  a  defendant,  against  whom  judgment 
is  recovered,  and  who  is  therefore  in  danger  of  execution,  or  perhaps 
actually  in  execution,  may  be  relieved  upon  good  matter  of  dis- 
charge, which  has  happened  since  the  judgment:  as  if  the  plaintiff 
hath  given  him  a  general  release;  or  if  the  defendant  hath  paid  the 
debt  to  the  plaintiff  without  procuring  satisfaction  to  be  entered 
on  the  record.  In  these  and  the  like  cases,  wherein  the  defendant 
hath  good  matter  to  plead,  but  hath  had  no  opportunity  of  plead- 
ing it  (either  at  the  beginning  of  the  suit,  or  'plus  darrein  con- 
tinuance, which,  as  was  shown  in  a  former  chapter  must  always  be 
before  judgment),  an  audita  querela  lies,  in  the  nature  of  a  bill  in 
equity  to  be  relieved  against  the  oppression  of  the  plaintiff.  It  is 
a  writ  directed  to  the  court,  stating  that  the  complaint  of  the 
defendant  hath  been  heard,  audita  querela  defendentis,  and  then, 
setting  out  the  matter  of  the  complaint,  it  at  length  enjoins  the 
court  to  call  the  parties  before  them,  and  having  heard  their  allega- 
tions and  proofs,  to  cause  justice  to  be  done  between  them.  It 
also  lies  for  bail,  when  judgment  is  obtained  against  them  by 
scire  facias  to  answer  the  debt  of  their  principal,  and  it  happens 
afterwards  that  the  original  judgment  against  their  principal  is 
reversed:  for  here  the  bail,  after  judgment  had  against  them,  have 
no  opportunity  to  plead  this  special  matter,  and  therefore  they 
shall  have  redress  by  audita  querela;    which  is  a  writ  of  a  most 

1  State  V.  Calhoun,  50  Kan.  523,  18  L.  R.  A.  838,  accord.  See  Bronson  v. 
Schulteu,  104  U.  S.  410,  2(i  L.  ed.  797.  —  Ed. 


UNITED    STATES   V.    JULIUS   M.    MAYER  565 

remedial  nature,  and  seems  to  have  been  invented  lest  in  any  case 
there  should  be  an  oppressive  defect  of  justice,  where  a  party  who 
hath  a  good  defense  is  too  late  to  make  it  in  the  ordinary  forms  of 
law. 

But  the  indulgence  now  shown  by  the  courts  in  granting  a 
summary  relief  upon  motion,  in  cases  of  such  evident  oppression, 
has  almost  rendered  useless  the  writ  of  audita  querela,  and  driven 
it  quite  out  of  practice.^ 


THE   UNITED   STATES   v.   JULIUS   M.   MAYER, 

Judge  of  the  District  Court  of  the  United  States  for  the 

Southern  District  of  New  York. 

Supreme  Court  of  the  United  States.     1914. 

[Reijorted  235  United  Stales,  55.] 

The  facts  stated  in  the  certificate  may  be  summarized  as  follows  : 
On  March  14th,  1913,  one  Albert  Freeman  with  two  other 
individuals,  was  convicted  in  the  District  Court,  Southern  District 
of  New  York,  on  five  indictments  for  violation  of  the  statutes 
relating  to  the  use  of  the  mails  and  for  a  conspiracy.  On  that  day 
judgments  of  conviction  were  entered  and  sentences  were  imposed 
as  to  certam  of  these  indictments,  or  counts  therein,  sentence  being 
suspended  as  to  others;  and  on  March  24th,  1913,  the  defendant 
Freeman  sued  out  a  writ  of  error  from  the  Circuit  Court  of  Appeals 
to  review  the  judgments  of  conviction.  Assignments  of  error  were 
filed;  and  on  IVIay  13th,  1913,  the  plaintiff  in  error  was  admitted  to 
bail  by  the  appellate  court.  No  bill  of  exceptions  has  been  settled 
or  filed  or  argument  had. 

On  January  12th,  1914,  the  plaintiff  in  error  gave  notice  of 
application  in  the  District  Court  to  set  aside  the  judgments  of 
conviction,  and  for  the  quashing  of  the  indictments,  or  for  a  new 
trial.  The  grounds  were,  among  others,  (1)  that  the  defendant 
had  been  deprived  of  a  fair  trial  by  the  misconduct  of  an  assistant 
United  States  attorney  and  (2)  that  one  juror  when  examined  on 
his  voir  dire  concealed  a  bias  against  the  defendant.  It  is  found 
as  a  fact  by  the  District  Judge,  that  neither  the  defendant  nor  his 
counsel  had  knowledge  of  the  facts  on  which  the  motion  was  based 

1  See  Longworth  v.  Screven,  2  Hill  (S.  C),  298;  1  Black,  Judgments,  2d  ed., 
sec.  299;    1  Freeman,  Judgments,  4th  ed.,  sec.  95. 

A  writ  of  audita  querela  may  be  brought  after  the  expiration  of  the  term  at 
which  judgment  was  rendered.     Stone  v.  Seaver,  5  Vt.  549.  —  Ed. 


566  PROCEEDINGS   AFTER   JUDGMENT 

until  after  the  conclusion  of  the  trial  and  the  expiration  of  the 
term  as  to  those  counts  upon  which  sentence  had  been  imposed, 
and  that  these  facts  could  not  have  been  discovered  earlier  by 
reasonable  diligence. 

Upon  the  hearing  of  the  application,  District  Judge  Mayer 
raised  the  question  of  the  jurisdiction  of  the  District  Court  to 
entertain  it,  in  view  of  the  fact  that  the  term  had  expired.  There- 
upon the  United  States  attorney  submitted  a  memorandum  ten- 
dering his  consent  that  the  appHcation  be  heard  upon  the  merits. 
The  application  was  heard  and  District  Judge  Mayer  handed 
down  his  decision  granting  a  new  trial,  "  on  the  ground  that  de- 
fendant had  not  had  a  trial  by  an  impartial  jury  for  the  reason 
that  one  of  the  jurors  at  the  time  of  his  selection  entertained  a  bias 
against  the  defendant  resulting  from  the  juror's  observations  of 
the  conduct  of  the  defendant  and  other  corporate  officers  in  relation 
to  the  production  of  certain  corporate  records  before  a  grand  jury 
of  which  he  had  been  a  member,  the  juror  having  concealed  his 
bias  on  his  examination  on  the  voir  dire  for  the  purpose  of  securing 
the  jury  fees  and  the  events  of  the  trial  having  been  such  as  to 
strengthen  and  confirm  this  bias."  The  order  vacating  the  judg- 
ments of  conviction  and  granting  a  new  trial  has  not  yet  been 
entered,  the  District  Judge  having  filed  a  memorandum  stating  in 
substance  that  the  question  of  jurisdiction  was  an  important  one 
and  that  the  order  would  be  withheld  until  the  United  States 
attorney  had  an  opportunity  to  raise  the  question  in  a  higher 
court. 

Thereafter,  and  on  April  6th,  1914,  the  United  States  attorney 
procured  an  order  in  the  Circuit  Court  of  Appeals  directing  Dis- 
trict Judge  Mayer  to  show  cause  why  a  writ  of  prohibition  should 
not  be  issued  from  that  court  forbidding  the  entry  of  an  order  vacat- 
ing the  judgments  of  conviction  and  granting  a  new  trial  upon  the 
ground  that  the  District  Court  was  without  jurisdiction  to  enter 
it.  Certain  of  the  facts  upon  which  the  motion  for  a  new  trial  was 
granted  do  not  appear  in  the  record  of  the  previous  trial. 
The  questions  certified  are :  '  .  .  . 

"  Question  2 

"  When  a  writ  of  error  has  been  issued  to  review  a  judgment  of 
conviction  in  a  criminal  cause  entered  in  a  District  Court,  has  the 
District  Court,  upon  a  motion  made  after  the  term  at  which 

'  A  part  of  the  case,  dealing  with  the  question  of  the  jurisdiction  of  the 
Circuit  Court  of  Appeals  to  issue  a  writ  of  prohibition,  is  omitted.  —  Ed. 


UNITED    STATES   V.   JULIUS   M.    MAYER  567 

judgment  was  entered,  jurisdiction  to  set  aside  the  judgment  and 
order  a  new  trial  on  facts  discovered  after  the  expiration  of  said 
term  and  not  appearing  in  the  record  of  the  previous  trial  ? 

"  Question  3 

"  Whether,  when  a  District  Court  has  itself  raised  the  question 
of  its  jurisdiction  to  entertain  a  motion  made  after  the  expiration 
of  the  term  to  vacate  a  judgment  of  conviction  and  the  United 
States  attorney  thereupon  tendered  its  consent  to  the  hearing  of 
the  motion  on  the  merits  if  the  jurisdictional  question  raised  by 
the  court  were  dependent  on  that  consent,  the  United  States  is 
debarred  by  such  tender  from  raising  the  question  of  jurisdiction 
of  the  District  Court  to  vacate  said  judgment  ?  " 

Hughes,  J.^  .  .  .  1.  In  the  absence  of  statute  providing  other- 
wise, the  general  principle  obtains  that  a  court  cannot  set  aside  or 
alter  its  final  judgment  after  the  expiration  of  the  term  at  which  it 
was  entered,  unless  the  proceeding  for  that  purpose  was  begun 
during  that  term.  Hudson  v.  Guestier,  7  Cranch  1;  Cameron  v. 
M'Roberts,  3  Wheat.  591;  Ex  parte  Sibbald,  12  Pet.  488,  492; 
Bank  of  United  States  v.  Moss,  6  How.  31,  38;  Bronson  v.  Schulten, 
104  U.  S.  410,  415-417;  Phihips  v.  Negley,  117  U.  S.  665,  673,  674; 
Hickman  v.  Fort  Scott,  141  U.  S.  415;  Hume  v.  Bowie,  148  U.  S. 
245,  255;  Tubman  v.  B.  &  O.  R.  R.  Co.,  190  U.  S.  38;  Wetmore  v. 
Karrick,  205  U.  S.  141,  149-152;  In  re  Metropolitan  Trust  Co., 
218  U.  S.  312,  320,  321.  There  are  certain  exceptions.  In  the 
case  of  courts  of  common  law  —  and  we  are  not  here  concerned 
with  the  special  grounds  upon  which  courts  of  equity  afford  reUef 
—  the  court  at  a  subsequent  term  has  power  to  correct  inac- 
curacies in  mere  matters  of  form,  or  clerical  errors,  and,  in  civil 
cases,  to  rectify  such  mistakes  of  fact  as  were  reviewable  on  writs  of 
error  coram  nobis,  or  coram  vohis,  for  which  the  proceeding  by 
motion  is  the  modern  substitute.  Pickett's  Heirs  v.  Legerwood, 
7  Pet.  144,  148;  Matheson's  Adm'r.  ?;.  Grant's  Adm'r.,  2  How. 
263,  281;  Bank  of  United  States  v.  Moss,  supra;  Bronson  v. 
Schulten,  supra;  Phillips  v.  Negley,  supra;  In  re  Wight,  134  U.  S. 
136;  Wetmore  v.  Karrick,  supra.  These  writs  were  available  to 
bring  before  the  court  that  pronounced  the  judgment  errors  in 
matters  of  fact  which  had  not  been  put  in  issue  or  passed  upon  and 

'  A  part  of  the  opinion,  holding  that  the  Supreme  Court  has  authority  to 
answer  the  questions  certified,  and  that  the  Circuit  Court  of  Appeals  had  juris- 
diction to  issue  the  writ  of  prohibition,  is  omitted,  —  Ed. 


568  PROCEEDINGS   AFTER   JUDGMENT 

were  material  to  the  validity  and  regularity  of  the  legal  proceed- 
ing itself;  as  where  the  defendant,  being  under  age,  appeared  by 
attorney,  or  the  plaintiff  or  defendant  was  a  married  woman  at  the 
time  of  commencing  the  suit,  or  died  before  verdict  or  interlocu- 
tory judgment,  —  for,  it  was  said,  '  error  in  fact  is  not  the  error  of 
the  judges  and  reversing  it  is  not  reversing  their  own  judgment.' 
So,  if  there  were  error  in  the  process,  or  through  the  default  of  the 
clerks,  the  same  proceeding  might  be  had  to  procure  a  reversal. 
But  if  the  error  were  '  in  the  judgment  itself,  and  not  in  the  process,' 
a  writ  of  error  did  not  lie  in  the  same  court  upon  the  judgment,  but 
only  in  another  and  superior  court.  Tidd,  9th  ed.,  1136,  1137; 
Stephen  on  Pleading,  119;  1  Roll.  Abr.,  746,  747,  749.  In  crimi- 
nal cases,  however,  error  would  lie  in  the  King's  Bench  whether 
the  error  was  in  fact  or  law.  Tidd,  1137;  3  Bac.  Abr.  (Bouv.  ed.) 
"  Error,"  366;  Chitty,  Crim.  L.,  156,  749.  See  United  States  v. 
Plumer,  3  Cliff.  28,  59,  60.  The  errors  of  law  which  were  thus 
subject  to  examination  were  only  those  disclosed  by  the  record, 
and  as  the  record  was  so  drawn  up  that  it  did  not  show  errors  in 
the  reception  or  rejection  of  evidence,  or  misdirections  by  the 
judge,  the  remedy  applied  '  only  to  that  very  small  number  of 
legal  questions  '  which  concerned  '  the  regularity  of  the  pro- 
ceedings themselves.'  See  Report,  Royal  Commission  on  Crimi- 
nal Code,  (1879)  p.  37;   1  Stephen,  Hist.  Crim.  L.,  309,  310. 

In  view  of  the  statutory  and  limited  jurisdiction  of  the  federal 
district  courts,  and  of  the  specific  provisions  for  the  review  of  their 
judgments  on  writ  of  error,  there  would  appear  to  be  no  basis  for 
the  conclusion  that,  after  the  term,  these  courts  in  common  law 
actions,  whether  civil  or  criminal,  can  set  aside  or  modify  their 
final  judgments  for  errors  of  law;  and  even  if  it  be  assumed  that 
in  the  case  of  errors  in  certain  matters  of  fact,  the  district  courts 
may  exercise  in  criminal  cases  —  as  an  incident  to  their  powers 
expressly  granted  —  a  correctional  jurisdiction  at  subsequent 
terms  analogous  to  that  exercised  at  common  law  on  writs  of  error 
coram  nobis  (See  Bishop,  New  Crim.  Pro.,  2d  ed.,  §  1369),  as  to 
which  we  express  no  opinion,  that  authority  would  not  reach  the 
present  case.  This  jurisdiction  was  of  limited  scope;  the  power 
of  the  court  thus  to  vacate  its  judgments  for  errors  of  fact  existed, 
as  already  stated,  in  those  cases  where  the  errors  were  of  the  most 
fundamental  character,  that  is,  such  as  rendered  the  proceeding 
itself  irregular  and  invalid.  In  cases  of  prejudicial  misconduct  in 
the  course  of  the  trial,  the  misl^ehavior  or  partiality  of  jurors,  and 
newly  discovered  evidence,  as  well  as  where  it  is  sought  to  have  the 


UNITED    STATES   V.    JULIUS   M.    MAYER  569 

court  in  which  the  case  was  tried  reconsider  its  ruhngs,  the  remedy 
is  by  a  motion  for  a  new  trial  (Jud.  Code,  sec.  269)  —  an  appHca- 
tion  wliich  is  addressed  to  the  sound  cUscretion  of  the  trial  court, 
and,  in  accordance  with  the  established  principles  which  have  been 
repeatedly  set  forth  in  the  decisions  of  this  court  above  cited, 
cannot  be  entertained,  in  the  absence  of  a  different  statutory 
rule,  after  the  expiration  of  the  term  at  which  the  judgment  was 
entered. 

State  statutes  relating  to  the  granting  of  new  trials  are  not 
apphcable.  As  was  said  by  this  court  in  Bronson  v.  Schulten, 
supra,  —  "  The  question  relates  to  the  power  of  the  courts  and  not 
to  the  mode  of  procedure.  It  is  whether  there  exists  in  the  court 
the  authority  to  set  aside,  vacate,  and  modify  its  final  judgments 
after  the  term  at  which  they  were  rendered;  and  this  authority 
can  neither  be  conferred  upon  nor  withheld  from  the  courts  of  the 
United  States  by  the  statutes  of  a  State  or  the  practice  of  its 
courts."  See,  also,  Ind.  &  St.  L.  R.  R.  Co.  v.  Horst,  93  U.  S.  291, 
301;  Mo.  Pac.  Rwy.  Co.  v.  C.  &.  A.  R.  R.  Co.,  132  U.  S.  191; 
Fishburn  v.  C,  M.  &  St.  P.  Ry.  Co.,  137  U.  S.  60;  Fuller  v.  United 
States,  182  U.  S.  562,  575;  United  States  v.  1621  Pounds  of  Fur 
Chppings,  106  Fed.  161;  City  of  Manning  v.  German  Ins.  Co.,  107 
Fed.  52. 

2.  As  the  District  Court  was  without  power  to  entertain  the 
application,  the  consent  of  the  United  States  attorney  was  un- 
availing. Cutler  V.  Rae,  7  How.  729,  731;  Byers  v.  McAuley,  149 
U.  S.  608,  618;  Minnesota  v.  Hitchcock,  185  U.  S.  373,  382.  It  is 
argued,  in  substance,  that  while  consent  cannot  give  jurisdiction 
over  the  subject  matter,  restrictions  as  to  place,  time,  etc.,  can  be 
waived.  Gracie  v.  Palmer,  8  Wheat,  699;  Toland  v.  Sprague,  12 
Pet.  300,  331;  Ayers  v.  Watson,  113  U.  S.  594,  598;  JMartin's 
Adm'r.  V.  B.  &  O.  R.  R.  Co.,  151  U.  S.  673,  688;  Rexford  v.  Bruns- 
wick-Balke  Co.,  228  U.  S.  339,  344,  345.  This  consideration  is 
without  pertinency  here,  for  there  was  no  general  jurisdiction  over 
the  subject  matter,  and  it  is  not  a  question  of  the  waiver  of  mere 
'  modal  or  formal  '  requirements,  of  mere  private  right  or  personal 
privilege.  In  a  federal  court  of  competent  jurisdiction,  final 
judgment  of  conviction  had  been  entered  and  sentence  had  been 
imposed.  The  judgment  was  subject  to  review  in  the  appellate 
court,  but  so  far  as  the  trial  court  was  concerned  it  was  a  finality; 
the  subsequent  proceeding  was,  in  effect,  a  new  proceeding  which 
b}^  reason  of  its  character  invoked  an  authoritj'  not  possessed.  In 
these  circumstances  it  would  seem  to  be  clear  that  the  consent  of 


570  PROCEEDINGS   AFTER   JUDGMENT 

the  prosecuting  officer  could  not  alter  the  case;  he  was  not  a  dis- 
pensing power  to  give  or  withhold  jurisdiction.  The  established 
rule  embodies  the  policy  of  the  law  that  litigation  be  finally 
terminated,  and  when  the  matter  is  thus  placed  beyond  the  dis- 
Ci-etion  of  the  court  it  is  not  confided  to  the  discretion  of  the 
prosecutor,  .  .  . 

Mr.  Justice  McReynolds  took  no  part  in  the  consideration 
and  decision  of  this  case. 

Wisconsin  Statutes,  1911. 

Section  2832.  The  court  or  a  judge  may  likewise,  in  discretion 
and  upon  such  terms  as  may  be  just,  at  any  time  within  one  year 
after  notice  thereof,  relieve  a  party  from  a  judgment,  order,  stipu- 
lation or  other  proceeding  against  him,  through  his  mistake, 
inadvertence,  surprise  or  excusable  neglect  and  may  supply  an 
omission  in  any  proceedings;  and  whenever  any  proceeding  taken 
by  a  party  fails  to  conform,  in  any  respect,  to  the  provisions  of  law 
the  court  may,  in  like  manner  and  upon  like  terms,  permit  an 
amendment  of  such  proceeding  as  to  make  it  conformable  thereto. 

Section  2833.  When  service  of  the  summons  shall  have  been 
made  by  publication,  if  the  summons  shall  not  have  been  personally 
served  on  a  defendant  nor  received  by  such  defendant  through  the 
post  office,  he  or  his  representatives  shall,  on  application  and  good 
cause  shown,  at  any  time  before  final  judgment,  be  allowed  to 
defend  the  action;  and,  except  in  an  action  for  divorce  or  annul- 
ment of  the  marriage  contract,  the  defendant  or  his  representative 
shall  in  like  manner,  upon  good  cause  shown  and  such  terms  as 
shall  be  just,  be  allowed  to  defend  after  final  judgment  at  any  time 
within  one  year  after  actual  notice  thereof  and  within  three  years 
after  its  rendition.  If  the  defense  be  successful  and  the  judgment 
or  any  part  thereof  shall  have  been  collected  or  otherwise  enforced 
such  restitution  may  thereupon  be  compelled  as  the  court  shall 
direct;  but  the  title  to  property,  sold  under  such  judgment  to  a 
purchaser  in  good  faith,  shall  not  thereby  be  affected.^ 

*  See  1  Black,  Judgments,  2d  ed.,  sec.  334;  1  Freeman,  Judgments,  4th  ed., 
chap.  VII;  23  Cyc.  907.  —  Ed. 


STEVENS   V.    HELM  571 

STEVENS  V.   HELM. 

Supreme  Court  of  Indiana.     1860. 

[Reported  15  Indiana,  183.] 

Appeal  from  the  Rush  Common  Pleas. 

Davison,  J.  This  was  an  action,  instituted  in  the  Rush  Com- 
mon Pleas,  by  the  appellee,  who  was  the  plaintiff,  against  Andrew 
Stevens,  upon  a  promissory  note,  for  the  payment  of  S300.  Process 
against  the  defendant  was  duly  issued  to  the  sheriff,  returnable  to 
the  second  day  of  the  April  term,  1859,  of  said  Court;  upon  which 
there  is  indorsed,  the  following  return:  "  Served  by  leaving  a  copy 
at  his  usual  place  of  residence,  this  April  13,  1859."  (Signed) 
"  H.  Laughlin,  S.  R.  C,  per  S.  B.  Laughlin."  On  the  day  on 
which  the  process  was  returnable,  the  defendant  was  called  and 
defaulted,  and  judgment  by  default  was  entered  against  him. 
Afterward,  on  the  same  day,  the  defendant  appeared,  and  moved  to 
set  aside  the  default,  and  in  support  of  his  motion,  filed  an  affidavit, 
alleging,  "  that  he  was  summoned  to  answer  the  complaint  on  that 
day;  that  he  had  left  his  home  in  an  extreme  part  of  Rush  county, 
early  that  morning,  expecting  to  be  in  time  for  Court;  that  he 
came  with  all  reasonable  dispatch,  and  arrived  at  Court  shortly 
after  9  o'clock  a.  m.,  and  found  that  a  judgment  by  default  had 
been  rendered  against  him.  That  he  is  desirous  of  making  a 
defense  against  the  action;  that  he  has  come  to  Court  for  that 
purpose,  and  will  be  ready  to  file  his  answer  by  the  next  calling  of 
the  cause,  provided  the  Court  will  set  aside  the  default.  The 
motion  was  refused,  and  the  defendant  excepted. 

There  is  nothing  in  this  exception.  The  affidavit  fails  to  show 
any  valid  defense  to  the  note,  and  for  that  reason,  alone,  it  is  an 
insufficient  support  to  the  motion.  Where  the  default  has  been 
regularly  taken,  the  Court  is  not  authorized  to  set  it  aside,  unless 
the  defendant  shows,  affirmatively,  that  he  has  a  meritorious 
defense  to  the  action.     1  Tidd's  Prac,  3  Am.  Ed.,  p.  567. 

But  it  is  said  that  "  the  Court  erred  in  rendering  judgment  by 
default  without  proof  of  the  service  of  process  on  the  defendant." 
The  return  is  .signed,  "  H.  Laughlin,  S.  R.  C,  per  S.  B.  Laughhn," 
and  the  point  rehed  on  is,  that  "  S.  B.  Laughhn  "  does  not  appear 
to  have  had  authority,  as  deputy  sheriff,  or  otherwise,  to  serve  the 
process.  In  the  absence  of  contrary  proof,  we  will  presume  that 
the  Court,  when  it  ordered  the  default,  was  fully  satisfied,  by 
evidence,  that  the  process  was  regularly  served.      Moreover,  the 


572  PROCEEDINGS  AFTER  JUDGMENT 

question  as  to  the  service  of  process  does  not  appear  to  have  been 
raised  in  the  Common  Pleas,  and  is  not,  therefore,  properly  before 
this  Court. 

Per  Curiam.  The  judgment  is  affirmed,  with  5  per  cent  dam- 
ages, and  costs. 

ADAMS  V.   HICKMAN. 

Supreme  Court  of  Missouri.     1869. 

[Reported  43  Missouri,  168.] 

Currier,  J.^  The  question  involved  here  is  one  of  practice.  An 
interlocutory  judgment  by  default  was  rendered  against  the  de- 
fendant, who,  the  succeeding  day,  moved  the  court  to  set  it  aside, 
and  for  leave  to  file  an  answer.  The  motion  was  accompanied 
with  an  affidavit  and  various  exhibits.  It  was  overruled  by  the 
court,  and  final  judgment  entered  for  the  plaintiff.  This  judg- 
ment was  reversed  by  the  District  Court,  and  the  plaintiff  brings 
the  case  here  by  writ  of  error.  From  the  affidavit  and  papers 
in  the  case,  among  which  is  the  defendant's  answer,  it  appears  that 
the  suit  was  by  attachment  to  the  Cooper  County  Circuit  Court, 
February  term,  1867,  the  defendant  being  a  non-resident,  and 
notice  being  given  by  publication.  No  actual  notice  of  the  pend- 
ency of  the  suit  appears  to  have  reached  him  till  July,  1867.  The 
defendant  was  absent  in  Europe  from  about  the  last  of  the  preced- 
ing December  till  that  time.  Before  leaving  for  Europe,  in  Decem- 
ber, in  anticipation  of  a  suit,  the  defendant  engaged  counsel  to 
represent  him,  who  appeared  at  the  February  term  of  the  court  and 
obtained  an  extension  of  the  time  for  pleading  to  within  ninety 
days  of  the  succeeding  August  term  of  the  court,  it  being  then 
believed  that  the  defendant  would  be  back  from  Europe  by  the 
1st  of  May,  1867.  He  did  not  reach  New  York,  however,  till 
July,  where  he  met  a  letter  from  his  attorney  advising  him  of  the 
suit.  He  thereupon  hastened  to  Boonville,  and  had  his  answer 
prepared,  which  was  lodged  with  the  clerk  of  the  court  on  the  9th  of 
July.  He  then  proceeded  to  Texas,  and  obtained  testimony  to  be 
used  on  the  trial  of  the  cjiuse,  and  was  ready  for  trial  at  the  August 
term,  to  which  the  case  stood  continued.  The  answer  is  elaborate, 
and  the  affidavit  filed  by  the  attorney  states  that  it  could  not  be 
prepan^d  without  the  assistance  of  the  defendant.  The  earnest 
determination  of  the  defendant  to  defend  against  the  claim  sued 

'  Only  the  opinion  of  the  court  is  here  given.  — •  Ed. 


CENTREVILLE   N.    B.    OF   WARWICK   V.    INMAN  573 

on  is  manifest.  Under  the  circumstances  it  would  be,  as  it  seems 
to  us,  more  technical  than  reasonable  to  deny  him  an  opportunity 
of  doing  so.  The  answer  discloses  merits,  and  the  affidavit  and 
exhibits  show  reasonable  diligence,  both  on  the  part  of  the  attor- 
ney and  his  client.  A  meritorious  defense  and  a  reasonable  degree 
of  diligence  in  making  it  is  all  that  it  is  necessary  to  establish,  in 
order  to  justify  the  setting  aside  of  the  interlocutory  judgment. 

The  judgment  of  the  District  Court  reversing  the  judgment  of 
the  Circuit  Court  is  affirmed.     The  other  judges  concur. 


CENTREVILLE  NATIONAL  BANK  OF  WARWICK 
V.   INMAN. 

Supreme  Court  of  Rhode  Island.     1912. 
[Reported  34  Rhode  Island,  .391.] 

Parkhurst,  J.  The  defendant  was  defaulted  in  the  Superior 
Court  under  the  following  circumstances;  the  suit  was  brought 
August  1,  1911,  and  made  returnable  August  15,  1911;  the  defend- 
ant employed  an  attorney  who  seasonably  entered  his  appearance 
for  defendant  on  August  9,  1911;  and  said  attorney  was,  upon  his 
request,  duly  excused  from  further  attendance  on  the  Superior 
Court  from  August  9  to  September  15,  1911,  and  went  away  on  a 
vacation  and  did  not  plead  to  the  action  within  the  time  fixed  by 
statute ;  while  he  was  away,  notice  of  motion  by  plaintiff's  attorney 
to  take  judgment  by  default  was  left  at  his  office,  but  not  received 
by  him,  and  default  was  taken  September  2,  1911,  before  a  justice 
other  than  the  one  who  excused  the  attorney;  upon  the  return  of 
the  defendant's  attorney  in  September,  he  immediately  moved  to 
take  off  the  default  and  a  hearing  was  had  before  the  Presiding 
Justice  of  the  Superior  Court,  who  heard  evidence  upon  the  ques- 
tion, whether  the  defendant  had  a  defence  to  the  action,  as  a 
condition  precedent  to  taking  off  the  default  and  allowing  the 
defendant  to  plead  to  the  action  and  proceed  to  trial. 

From  the  transcript  of  the  proceedings  at  this  hearing,  it  does 
not  appear  that  the  question  of  the  absence  of  the  defendant's 
attorney  on  vacation  and  of  his  being  excused  by  a  justice  of  the 
court  or  that  this  was  a  valid  excuse  for  not  pleading  to  the  action, 
was  questioned;  or  that  any  question  was  considered,  other  than 
to  find  out  whether  the  defendant  had  a  defence  to  the  action,  it 
being  conceded  by  the  justice  at  the  hearing  that  he  would  take 


574  PROCEEDINGS   AFTER   JUDGMENT 

off  the  default  and  allow  the  defendant  to  plead  and  go  to  the  jury, 
if  he  could  see  any  reasonable  defence.  But  after  hearing  evidence 
from  the  defendant  and  also  from  the  cashier  of  the  plaintiff  bank, 
the  justice  decided  that  there  was  no  reasonable  defence,  and 
refused  to  take  off  the  default.  To  this  decision  the  defendant 
took  exception  and  the  case  is  now  before  tliis  court  upon  this 
exception. 

It  appears  that  the  note,  upon  which  the  suit  was  brought,  was 
originally  for  $1,200,  dated  July  2,  1904,  to  the  order  of  the  plain- 
tiff, payable  six  months  after  date.  It  bears  upon  its  face  the  signa- 
ture of  Daniel  E.  Sullivan  and  D.  Lehane,  and  also  the  name 
"  Charles  M.  Inman  ";  but  Mr.  Inman  says  he  never  saw  the  note 
until  June  30,  1906,  when  he  admits  that  he  signed  his  name  on  the 
back  of  the  note,  under  the  words  "  June  30,  1906,  I  hereby 
guarantee  the  payment  of  this  note."  He  denies  that  he  ever  saw 
the  note  before  this  latter  date;  but  he  is  not  certain  whether  he 
did  or  not  place  his  name  on  the  face  of  the  note  at  this  time. 
The  cashier  testified  that  he  saw  Mr.  Inman  sign  the  note  in  both 
places,  but  he  does  not  give  the  date  at  which  he  claims  it  was 
signed  on  its  face,  nor  does  he  offer  any  explanation  why  the 
defendant,  if  he  was  a  joint  and  several  maker,  should  have  signed 
a  guaranty  on  the  back  of  the  note,  or  why,  if  he  was  a  guarantor, 
he  should  have  signed  on  the  face  of  the  note,  as  a  joint  and  several 
maker.  We  think  the  note  itself  indicates  that  the  signature  of 
Charles  M.  Inman  was  placed  thereon  in  different  ink  and  probably 
at  a  different  time  from  the  other  signatures;  and  it  appears  that  the 
claim  of  Mr.  Inman  is  that  he  had  nothing  to  do  with  the  note  when 
it  was  given,  and  knew  nothing  of  it  till  nearly  two  years  after  its 
date,  when  he  admits  that  he  guaranteed  it.  The  declaration 
simply  declares  against  Mr.  Inman  as  a  maker  of  the  note  and  so 
as  primarily  liable,  but  contains  no  count  against  him  as  a  guaran- 
tor. 

Under  the  circumstances,  we  think  that  the  defendant  should 
have  been  permitted  to  go  before  a  jury  and  make  his  defence  on 
the  question  whether  or  not  he  was  a  maker  of  the  note,  he  being 
sued  only  as  maker  and  not  as  a  guarantor. 

In  the  matter  of  motions  to  take  off  defaults,  where  the  question 
whether  the  defendant  has  a  defence  on  the  merits  is  involved,  it 
has  been  frequently  held,  that  the  court  hearing  the  motion  will 
not  seek  to  determine  whether  the  defence  claimed  will  prevail  on  a 
trial;  Excise  Commrs.  v.  Hollister,  2  Hilt  (N.  Y.)  588;  Benedict  v. 
Arnoux,  85  Hun  (N.  Y.)  283;  nor  will  the  court,  on  the  motion 


BARRETT   V.    QUEEN    CITY    CYCLE    CO.  575 

hear  counter  affidavits  on  the  merits  or  examine  into  the  truth 
of  the  allegations  of  defence  —  6  Encyc.  PI.  &  Pr.  188  and  cas.  cit.; 
Francis  v.  Cox,  33  Cal.  323;  Gracier  v.  Weir,  45  Cal.  53;  Buck  v. 
Havens,  40  Ind.  221,  224;  Hanford  v.  McNair,  2  Wend.  (N.  Y.) 
286. 

The  error  of  the  court  in  the  case  at  bar  was  in  passing  upon  the 
truth  and  sufficiency  of  the  defendant's  claim  that  he  was  not  a 
maker  of  the  note,  which  could  only  properly  be  passed  upon  by  a 
jury  on  the  trial  of  the  case,  or  by  the  court  in  case  a  jury  trial  was 
waived. 

The  defendant's  exception  is  sustained,  and  the  case  is  remitted 
to  the  Superior  Court,  with  direction  to  enter  its  order  taking  off 
the  default  upon  such  terms  as  to  costs,  as  it  shall  determine,  and 
to  permit  the  defendant  to  plead  within  such  time  as  it  shall  fix 
and  for  further  proceedings. 


BARRETT  et  al.  v.   THE  QUEEN   CITY  CYCLE 
COMPANY. 

Supreme  Court  of  Illinois.     1899. 
[Reported  179  Illinois,  68.] 

Craig,  J.  This  was  an  action  of  assumpsit,  brought  by  appellee 
in  the  circuit  court  of  Cook  county,  against  appellants.  The 
declaration  contained  the  common  counts  for  goods  sold  and 
delivered,  amounting  to  the  sum  of  S2000.  The  action  was  brought 
on  December  6,  1897.  On  the  next  day  service  was  accepted,  and 
on  the  10th  day  of  December  Hahn  &  Horn,  who  were  attorneys 
for  appellants,  entered  their  appearance  in  the  cause.  On  the 
same  day  a  declaration  was  filed  by  plaintiff,  and  on  the  23d  day 
of  December,  no  plea  having  been  filed,  a  default  was  entered  and 
judgment  rendered  for  $1367.97.  At  the  same  term  of  court  a 
motion  was  made  to  set  aside  the  default,  but  it  was  overruled 
l)y  the  court.  The  appellants  appealed  to  the  Appellate  Court, 
where  the  judgment  was  affirmed,  and  to  reverse  the  judgment  of 
the  Appellate  Court  this  appeal  was  taken. 

The  judgment  of  a  circuit  court  cannot  be  reversed  on  appeal, 
in  a  case  of  this  character,  unless  it  appears  that  there  has  been  an 
abuse  of  the  discretion  of  that  court,  and  where  it  appears  that  the 
party  defaulted  has  failed  to  exercise  due  diligence  it  has  never 
been  held  an  abuse  of  discretion  to  refuse  to  vacate  a  judgment.  As 


576  PROCEEDINGS   AFTER   JUDGMENT 

a  general  rule,  diligence  and  merits  must  both  appear,  otherwise 
the  discretion  of  the  court  will  not  be  interfered  with  in  a  case  of 
this  character.  The  entire  showing  as  to  diligence  is  embraced 
in  the  affidavit  of  Hahn,  appellants'  attorney,  viz.:  "  That  inad- 
vertently no  plea  was  filed  under  the  following  circumstances,  to 
wit:  That  William  F.  Dockery,  a  clerk  in  the  office  of  defendants' 
attorneys,  inadvertently  placed  the  cause  on  the  office  diary  for  the 
January  term  in  place  of  the  December  term,  1897,  for  answer  to 
be  filed."  We  do  not  think  this  affidavit  shows  proper  diligence. 
The  attorneys  of  appellants  knew  that  the  suit  was  commenced  in 
time  to  require  a  plea  at  the  December  term  of  court,  and  if  they 
had  looked  at  the  files  they  would  have  found  a  declaration  on 
file  which  required  an  answer  at  that  term.  They  did  not,  how- 
ever, take  this  precaution  but  relied  on  a  memorandum  made  by 
their  clerk,  who,  it  seems,  made  a  mistake,  and  through  inadver- 
tence placed  the  cause  on  the  office  diary  for  the  January  term  in 
the  place  of  the  December  term.  It  was  held  in  Schultz  v.  Meisel- 
bar,  144  111.  26,  that  inadvertence  is  not  a  sufficient  ground  to  set 
aside  a  judgment  rendered  by  default.  It  is  there  said:  "  The 
affidavits  may  be  conceded  to  disclose  a  meritorious  defense,  but 
they  show  no  reason  why  plea  was  not  filed  within  the  proper 
time,  other  than  that  the  attorney  employed  by  appellant  to  defend 
him  in  that  case,  and  who  represents  appellant  in  this  appeal,  failed 
to  do  so  through  press  of  business  and  inadvertence.  If  this 
attorney  was  unable  to  attend  to  the  case  through  press  of  business, 
it  was  plainly  the  duty  of  appellant  to  employ  another  attorney 
who  could  attend  to  it,  and  the  negligence  of  the  attorney  in  failing 
to  ffie  a  plea  is  the  negligence  of  his  client.  —  Mendell  v.  Kimball, 
85  111.  582;  Walsh  v.  Walsh,  114  id.  655." 

It  is  claimed  that  the  court  erred  in  allowing  appellee  to  read  an 
affidavit  on  the  motion  to  vacate  the  judgment.  Conceding  that 
affidavits  on  behalf  of  appellee  were  inadmissible,  the  one  read 
on  the  motion  related  solely  to  the  merits,  and  hence  did  no  harm, 
as  the  case  turned  on  the  question  of  diligence. 

We  think  no  sufficient  ground  was  shown  to  set  aside  the  judg- 
ment, and  the  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed.^ 

1  See  23  Cyc.  939.     Compare  Betts  v.  Bctts,  165  N.Y.  App.  Div.  274.—  Ed. 


ROGERS    AND    TALLMAN    V.    CUMMMINGS  '  577 

ROGERS   and   TALLMAN  v.   CUMMINGS. 

Supreme  Court  of  Iowa.     186L 

[Reported  11  Iowa,  459.] 

Trespass  for  seizing  and  selling  goods  which  did  not  belong  to  the 
defendant  in  the  execution.  Judgment  by  default  against  defend- 
ant, who,  two  days  thereafter,  moved  the  court  to  set  aside  said 
default,  which  motion  was  based  upon  several  affidavits  showing  a 
meritorious  defense,  and  what  was  claimed  to  be  a  reasonable 
excuse  for  having  made  such  default.  Motion  sustained  and 
default  set  aside.  Plaintiffs  excepted,  and  upon  this  exception 
alone  the  case  comes  into  this  court. 

Lowe,  C.  J.  Applications  of  this  kind  are  so  entirely  ad- 
dressed to  the  favor  and  discretion  of  the  court  that  unless  it  is 
clear  and  manifest,  from  the  circumstances  developed,  that  the 
court  has  abused  this  discretion  we  should  not  disturb  such  ruling. 
When  all  the  facts  brought  to  light  in  the  four  affidavits  made  in 
support  of  the  motion  are  duly  considered  we  are  by  no  means 
satisfied  that  the  court  abused  its  discretion. 

Judgment  affirmed} 

1  See  Iowa  Sa\angs  &  Loan  Ass'n  v.  Kent,  134  la.  444,  109  N.  W.  773. 

The  action  of  the  court  in  opening  a  default  is  reviewable  for  abuse  of  dis- 
cretion. Cascade  Hotel  Co.  v.  Orleans  Real  Est.  Co.,  1.53  N.  Y.  App.  Div.  882, 
137  N.  Y.  Supp.  1054,  affirmed  100  N.  E.  1125.  —  Ed. 


CHAPTER  XII. 

THE  ENFORCEMENT  OF  JUDGMENTS. 

[Smith,  Action  at  Law  (2d  ed.),  pp.  162-176.] 

If  the  judgment  be  not  reversed,  vacated,  or  set  aside,  the  pre- 
vaihng  party  has  a  right  to  issue  Execution.  This,  if  the  judgment 
be,  as  it  almost  always  is,  for  so  much  money,  is  mostly  by  writ  of 
Fieri  Facias,  Capias  ad  Satisfaciendum  or  Elegit.  There  are  indeed 
two  other  modes  of  execution,  one  by  Levari  Facias,  and  the  other 
by  Extent;  but  the  former  being  altogether  unusual,  and  the  latter 
almost  entirely  appropriated  to  the  crown,  no  further  notice  will  be 
here  taken  of  them. 

A  Fieri  Facias  is,  like  the  Capias  ad  Satisfaciendum  and  Elegit,  a 
judicial  writ,  and  issues  out  of  the  court  in  which  the  judgment 
against  the  defendant  was  recovered.  Except  in  counties  palatine 
(where  it  is  addressed  to  the  palatine  officer),  it  is  directed  to  the 
sheriff  of  the  county  where  the  venue  in  the  action  was  laid,  com- 
manding him  that  of  the  goods  and  chattels  of  the  defendant,  he 
cause  to  be  made  the  sum  recovered,  and  have  it  before  the  court  on 
the  return  day :  this  being  delivered  to  the  sheriff,  or  his  deputy,  he 
makes  a  warrant  to  one  of  his  officers,  or,  if  he  be  the  officer  of  a 
county  palatine,  grants  his  mandate  to  the  sheriff,  who  in  his  turn 
issues  a  warrant  to  his  officer.  .  .  . 

When  the  writ  becomes  returnable,  the  sheriff  may  return  Fieri 
Feci,  i.  e.,  that  he  has  levied  the  sum  named  in  the  writ,  or  a  part  of 
it,  which  he  is  ready  to  pay  to  the  execution  creditor;  or,  that  he 
has  taken  goods  which  remain  unsold  for  want  of  buyers;  or  nulla 
bona,  i.  e.,  that  the  defendant  has  no  goods  within  his  bailiwick;  or, 
any  other  legal  excuse  for  not  levying.  If  money  have  been  levied, 
and  the  sheriff  neglect  to  pay  it  over,  the  creditor  may  obtain  it 
from  him  either  by  rule  of  court  or  action.  If  part  only  be  levied 
and,  of  course,  when  7iulla  bona  is  returned,  he  may  have  a  new 
execution  for  the  residue;  and,  if  he  think  proper  still  to  proceed  by 
Fieri  Facias,  may  sue  out  either  an  Alias  Fieri  Facias,  into  the 
same,  or  a  Testatum  Fieri  Facias  into  any  other  county.  If  the 
return  be,  that  the  goods  are  unsold  for  defect  of  buyers,  he  may 
have  a  Writ  of  Venditioni  Exponas  commanding  the  sheriff  to  sell 

678 


SMITH,  ACTION  AT  LAW  579 

them.     And,  lastly,  if  the  return  be  false,  an  action  may  be  brought 
against  the  sheriff".  .  .  , 

A  Capias  ad  Satisfaciendum,  is  a  writ  by  which  the  sheriff  is 
commanded  to  take  the  defendant,  and  him  safely  keep,  so  that  he 
may  have  him  in  court  on  the  return  day,  to  satisfy  the  plaintiff. 
This  process  lies  against  every  one  who  was  not  personally  priv- 
ileged against  arrest  at  the  commencement  of  the  suit,  and  against 
some  who  were,  such  as  attornies. 

The  sheriff  must  execute  it  literally  according  to  its  terms,  and 
has  no  power,  instead  of  arresting  the  defendant,  to  receive  the 
money  due  from  him,  but,  if  the  defendant  wish  to  liberate  himself 
by  payment,  he  must  have  recourse  to  the  execution  creditor,  who 
is  bound,  on  tender  of  the  smn  due,  to  sign  a  proper  authority  for 
his  discharge.  On  the  return  day  of  this  writ  the  sheriff  generally 
returns  Cepi  Corpus  et  paratum  habeo,  i.  e.,  that  he  has  taken  the 
body  of  the  defendant  and  has  it  ready;  or  that  the  defendant  is  so 
ill  that  he  cannot  remove  him  without  danger  to  his  life;  or  he  may 
return  non  est  inventus,  i.  e.,  that  the  defendant  is  not  found  within 
his  bailiwick.  If  the  last  return  be  made,  the  plaintiff  may  sue  out 
an  Alias  Capias  into  the  same,  or  a  Testatum  Capias  into  another 
county,  or  he  may,  if  he  please,  sue  out  an  Exigi  Facias,  and  pro- 
ceed to  Outlawry. 

If  the  defendant  be  taken,  he  either  remains  in  the  custody  of  the 
sheriff  in  the  county  gaol,  or  is  removed  by  Habeas  Corpus  to  the 
prison  of  the  superior  court.  In  either  case  the  law  sets  so  high  a 
value  upon  the  liberty  of  the  subject,  that  it  considers  the  execution 
a  satisfaction  of  the  judgment  as  against  him;  and,  therefore, 
though  the  defendant  had  died  in  prison,  or  been  discharged  by 
privilege  of  parliament,  the  plaintiff's  remedy  would  have  been  at 
an  end,  but  for  Stat.  2  Jac.  1,  c.  13,  and  21  Jac.  1,  c.  24,  the  former 
of  which  gives  execution  after  the  privilege  of  parliament  has 
ceased,  and  the  latter  execution  against  the  deceased's  goods  and 
chattels;  and  if  the  defendant  escape  from  the  sheriff,  or  be  rescued, 
the  plaintiff  may  have  new  process  to  retake  him,  though  he  will 
also  in  that  case  have  a  remedy  against  the  sheriff  or  gaoler  for  his 
dereliction  of  duty. 

An  Elegit  is  a  writ  first  given  by  the  statute  of  Westminster  the 
second,  which  enacted  that  where  a  debt  is  acknowledged  or 
recovered  in  the  King's  Court,  or  damages  awarded,  it  shall  be  in 
the  election  of  him  who  sues  for  such  debt  or  damages,  to  have  a 
Wi'it  of  Fieri  Fo^yias,  or  that  the  sheriff  deliver  to  him  all  the  chat- 
tels of  the  debtor,  saving  his  oxen  and  beasts  of  the  plough,  and  a 


5S0  THE  ENFORCEMENT  OF  JUDGMENTS 

moiety  of  his  land,  until  the  debt  be  levied  by  a  reasonable  price  or 
extent. 

This  writ  of  execution  against  the  defendant's  land  may  be  had 
as  well  after  his  death  as  before  it.  The  sheriff  on  receiving  it  is  to 
empamiel  a  jury,  who  enquire  of  the  goods  and  chattels  of  the 
defendant,  and  appraise  them,  and  also  enquire  of  his  lands  and 
tenements.  The  goods  and  chattels  are  delivered  to  the  plaintiff 
at  the  price  at  which  they  have  been  valued  by  the  jury;  a  mode 
different  from  that  pursued  in  executing  a  Fieri  Facias,  under  which 
the  sheriff  must  sell  the  goods  which  he  has  taken.  If  the  goods 
and  chattels  were  not  sufficient  to  satisfy  the  plaintiff's  demand, 
the  sheriff  was  to  extend  a  moiety  of  the  lands,  under  which  term 
were  included  reversions  and  rent-charges  belonging  to  the  defend- 
ant, but  copyholds,  rents-seek,  advowsons  in  gross,  or  glebe  belong- 
ing to  a  parsonage  or  vicarage  were  not  extendible,  nor  were  lands 
held  in  trust  so,  until  29  Car.  2,  c.  3,  s.  10;  though,  by  that  statute, 
some  species  of  trust  property,  to  which  the  defendant  was  entitled 
at  the  time  of  execution  sued,  might  have  been  extended.  .  .  . 

After  the  expiration  of  a  year  and  a  day,  the  plaintiff  cannot  sue 
out  any  of  the  above  Writs  of  Execution,  without  revising  his 
judgment  by  a  writ  of  Scire  Facias;  the  reason  of  which  is,  that, 
after  so  long  a  space  of  time,  the  court,  prima  facie,  presumes  his 
demand  to  be  satisfied.  We  will  present  the  reader  with  a  short 
account  of  the  proceedings  by  which  the  revival  of  a  judgment  is 
effected. 

A  Scii'e  Facias  is  a  writ  founded  upon  some  matter  of  record. 
When  brought,  as  it  may  be,  to  repeal  a  patent,  it  is  an  original 
writ  issuing  out  of  the  Court  of  Chancery;  in  other  cases  it  is  a 
judicial  writ,  and  is  sued  out  of  the  court  in  which  the  record  on 
which  it  is  founded  happens  to  be.  It  is  considered  as  the  com- 
mencement of  a  new  action,  and  has,  therefore,  been  enumerated 
at  the  beginning  of  this  Treatise,  among  Actions  Personal.  Among 
the  great  variety  of  purposes  to  which  it  may  be  applied,  it  is  here 
intended  to  consider  only  the  mode  in  which  it  is  used,  for  the 
purpose  of  revising  a  judgment.  .  .  . 

The  Scire  Facias  states  the  judgment  recovered  by  the  plaintiff, 
and  that  execution  still  remains  to  be  had,  and  commands  the 
sheriff  to  make  known  to  the  defendant  that  he  be  in  court  at  the 
return  day,  to  shew  why  the  plaintiff  ought  not  to  have  execution. 
After  the  judgment  has  been  revived  by  means  of  this  writ,  the 
jjiaiiitiff  must  take;  out  execution  within  a  year  and  a  day  from  the 
revival;  for  if  lie  do  not,  or  if  the  defendant  happen  to  die,  he  can- 


SMITH,    ACTION   AT   LAW  581 

not  afterwards  take  out  execution,  but  will  be  forced  to  bring  a  new 
Scire  Facias. 

A  Scire  Facias  upon  a  judgment  is  necessary,  not  only  when  the 
plaintiff  has  delayed  to  take  out  execution  within  a  year  and  a  day, 
but  also  when  any  new  person  is  to  be  benefited  or  charged  by  the 
execution  of  the  judgment;  for  it  is  a  rule  that  executions,  and  all 
other  judicial  writs,  must  pursue  and  correspond  with  the  judg- 
ments on  which  they  are  founded;  therefore,  if  a  judgment  be 
obtained  against  A.,  and  he  die,  a  writ  of  execution  camiot  issue 
against  his  executor,  for  he  was  no  party  to  the  judgment;  so,  if 
the  plaintiff  obtain  judgment,  and  marry,  execution  caimot  issue  in 
favour  of  her  husband,  for  he  is  not  mentioned  in  the  record.  In 
these  and  similar  cases,  a  writ  of  Scire  Facias  is  sued  out,  which 
recites  the  facts  as  they  have  happened;  the  judgment  given  upon 
that  writ  includes  the  new  party  intended  to  be  benefited  or 
charged,  and  execution  may  be  afterwards  sued  out  upon  that 
judgment. 

[Blackstone,  Commentaries,  Book  III,  *  pp.  412-413.] 

If  the  plaintiff  recovers  in  an  action  real  or  mixed,  wherein  the 
seisin  or  possession  of  land  is  awarded  to  him,  the  writ  of  execu- 
tion shall  be  an  habere  facias  seisinam,  or  writ  of  seisin,  of  a  free- 
hold; or  an  habere  facias  possessionem,  or  writ  of  possession,  of  a 
chattel  interest.  These  are  writs  directed  to  the  sheriff  of  the 
county,  commanding  him  to  give  actual  possession  to  the  plaintiff 
of  the  land  so  recovered :  in  the  execution  of  which  the  sheriff  may 
take  with  him  the  posse  comitatus,  or  power  of  the  county;  anti 
may  justify  breaking  open  doors,  if  the  possession  be  not  quietly 
delivered.  But,  if  it  be  peaceably  yielded  up,  the  delivery  of  a 
twig,  a  turf,  or  the  ring  of  the  door,  in  the  name  of  seisin,  is  suffi- 
cient execution  of  the  writ.  .  .  . 

Upon  a  replevin,  the  writ  of  execution  is  the  writ  de  retorno 
habendo. 

[For7n  of  Writ  of  Fieri  Facias.]  * 

Victoria,  by  the  grace  of  God  of  the  United  Kingdom  of  Great 
Britain  and  Ireland  Queen,  defender  of  the  faith,  to  the  sheriff  of 

greeting:  We  command  j^ou  that  you  cause  to  be  made  of  the 

goods  and  chattels  in  your  bailiwick  of  C.  D.  the  sum  of  £ , 

which  in  our  court  before  us  at  Westminster  were  awarded  to  A.  B. 
for  his  damages  which  he  had  sustained,  as  well  on  occasion  of  not 

1  See  Smith,  Action  at  Law,  2d  ed.,  p.  222.  —  Ed. 


582  THE    ENFORCEMENT   OF   JUDGMENTS 

performing  certain  promises  and  undertakings  as  for  his  costs  and 
charges  by  him  about  his  suit  in  that  behalf  expended:  whereof 
the  said  C.  D.  is  convicted,  as  appears  to  us  of  record;  and  have 
you  that  money  before  us  at  Westminster,  immediately  after  the 

execution  hereof  [or  "  on ,"]  to  render  to  the  said  A.  B.  for  his 

said  damages;  and  have  you  there  then  this  writ.     Witness  (name 

of  chief  justice)  at  Westminster,  the day  of ,  in  the year 

of  our  reign. 

HARGIS  V.   MORSE. 
Supreme  Court  of  Kansas.     1871. 

[Reported  7  Kansas,  415.1 

Brewer,  J.^  Defendant  in  error  brought  ejectment  against 
plaintiff  in  error.  Upon  trial  he  proved  title  by  patent  and  deed. 
Defendant  in  error  attempted  to  show  a  transfer  of  title  to  herself 
by  judgment,  sale,  and  sheriff's  deed.  The  evidence  she  offered 
was  rejected,  and  this  ruling  is  brought  here  for  review.  She 
offered  the  journal  entry  of  judgment  in  the  case  of  "  William  H. 
Strode  v.  Enoch  L.  Morse,"  in  the  Doniphan  county  district  court, 
the  order  and  the  confirmation  of  sale,  the  appraisement,  and  the 
sheriff's  deed.  Each  was  rejected  on  the  ground  that  no  legal  ser- 
vice was  shown  to  have  been  made  in  that  action  upon  the  defend- 
ant Morse.  It  is  not  claimed  that  there  was  any  proof  of  service. 
The  only  testimony  which  could  in  any  degree  have  any  bearing  in 
that  direction  was  the  testimony  of  the  clerk  of  the  district  court, 
that,  by  fire  in  1867  the  files  of  all  cases  disposed  of,  among  them 
the  case  of  "  Strode  v.  Morse,"  were  burned;  and  the  first  sentence 
in  the  journal  entry  of  judgment,  which  contains  these  words :  "  the 
defendant  still  failing  to  answer  or  demur,  although  duly  served  by 
publication  in  the  Troy  Weekly  Investigator,  a  weekly  newspaper 
published  in  Doniphan  county,  and  State  of  Kansas."  The  testi- 
mony of  the  clerk  tended  neither  to  prove  nor  disprove  the  fact  of 
service;  at  most  it  simply  laid  the  foundation  for  secondary  evi- 
dence. The  journal  entry  disclosed  the  manner  in  which  service 
had  been  attempted  to  be  made.  A  judgment  rendered  against  a 
party  not  in  court  is  void.  It  conveys  no  title,  affects  no  rights. 
The  title  shown  l)y  the  patent  and  deed  in  Morse  could  not  be 
transferred  by  any  judgment  against  him  unless  rendered  in  a  court 
which  had  acquired  jurisdiction  of  his  person.     Until  such  jurisdic- 

^  Only  the  opinion  of  the  court  is  given.  —  Ed. 


LOS  ANGELES  COUNTY  BANK  V.    RAYNOB  583 

tion  appeared,  neither  judgment,  sale,  nor  deed  were  competent 
evidence;  2  Kas.,  340.  Neither  is  tlie  difficulty  avoided  by  the 
presumption  which  exists  in  favor  of  the  proceedings  in  courts  of 
general  jurisdiction.  That  presumption  arises  only  when  the 
record  is  silent;  it  does  not  supersede  the  record.  A  party  may  not 
introduce  part  of  a  record,  and  relying  on  presumptions,  withhold 
the  remamder.  In  this  case  the  plaintiff  in  error  commenced  her 
testimony  with  the  entry  of  judgment.  True,  she  proved  that  the 
files  of  the  case  were  destroyed  by  fire;  but  she  made  no  attempt  to 
prove  what  those  files  contained.  The  final  record  required  by  the 
laws  of  1862  should  contain  the  pleadings,  the  process,  the  return, 
etc. :  Comp.  Laws,  p.  189,  §  402.  In  the  absence  of  proof  to  the 
contrary  we  must  presume  such  record  was  made,  and  was  still  in 
existence.  If  there  was  no  final  record,  the  files  of  the  newspaper 
would  have  contained  the  secondary  testimony,  or  it  might  have 
been  derived  from  the  officers  of  the  court,  the  parties,  or  attorneys 
in  the  case.  At  any  rate,  until  it  appears,  not  merely  that  the 
papers  are  gone,  but  also  that  there  is  no  secondary  proof  of  their 
contents,  there  is  no  presumption,  even  in  favor  of  the  proceedings 
of  a  court  of  general  jurisdiction,  from  the  existence  of  one  part 
of  a  record  that  the  remainder  would,  if  produced,  contain  the  facts 
necessary  to  give  the  court  jurisdiction.  This  case  never  got  so  far 
as  a  question  of  presumptions;  it  stopped  on  a  question  of  evidence. 
All  the  Justices  concurring.  The  judgment  is  affirmed. 


LOS  ANGELES  COUNTY  BANK  v.   RAYNOR. 

Supreme  Court  of  California.     1882. 
[Reported  61  California,  145.] 

McKee,  J.  This  was  an  action  for  recovering  the  possession  of  a 
tract  of  land. 

At  the  trial  of  the  issue  made  by  the  complaint  and  answer,  the 
plaintiff,  to  prove  his  right  of  entry,  offered  in  evidence  the  judg- 
ment roll  in  the  case  of  the  Los  Angeles  County  Bank  v.  the  defend- 
ant, P.  A.  Ra\Tior,  and  others.  The  roll  showed  that  an  action  had 
been  commenced  in  the  late  District  Court  of  San  Bernardino 
County,  on  May  2,  1876,  to  foreclose  a  mortgage  given  by  Ra3Tior 
to  the  bank  upon  the  land  in  dispute;  that  summons  had  been 
duly  issued,  and  was  personally  served  on  Raynor,  who  made 
default;  and  that,  after  his  default  had  been  entered,  the  Court 
made  and  filed  its  written  finding  and  conclusions  of  law,  upon 


584  THE    ENFORCEMENT    OF   JUDGMENTS 

which  judgment  was  duly  given  and  signed  by  the  Judge,  June  27, 
1876;  but  the  judgment  was  not  entered  in  the  judgment  book 
until  March  21,  1881,  when  it  was  then  indorsed  by  the  Clerk  of  the 
Court  "  Entered  as  of  June  26,  1876,  by  stipulation  of  the  defend- 
ant Raynor."  The  plaintiff  also  offered  in  evidence  an  execution 
issued  on  the  judgment  June  27,  1876;  the  return  of  the  Sheriff 
indorsed  thereon  August  1,  1876,  showing  that  he  hacf  sold  the 
premises  to  the  plaintiff,  and  a  deed  of  the  premises  made  by  the 
Sheriff  to  the  plaintiff,  February  1,  1877. 

To  each  of  these  offers  the  defendant  objected,  that  there  had 
never  been  any  legal  entry  of  the  judgment;  that  the  execution  was 
issued  and  returned  before  any  proper  or  legal  entry  of  the  judg- 
ment; and  that,  in  consequence,  the  execution  sale  and  Sheriff's 
deed  were  irregular  and  void,  and  passed  no  title.  The  objections 
were  overruled  and  the  defendant  excepted.  We  think  the  excep- 
tion was  not  well  taken. 

In  an  action  of  ejectment  against  a  defendant  in  execution,  it  is 
not  necessary  for  the  plaintiff,  who  claims  as  a  purchaser  under  the 
execution,  to  do  more  than  show  the  judgment  of  a  Court  of 
competent  jurisdiction,  the  execution  issued  thereon,  and  the 
Sheriff's  deed.  Upon  proof  of  these  things,  the  plaintiff  makes 
out  at  least  a  prima  facie  case  against  the  defendant.  It  is  not 
claimed  that  the  judgment  in  evidence,  given  on  the  27th  of  June, 
1876,  was  void.  Being  valid  it  was  enforceable  by  execution; 
and  the  execution  which  was  issued  to  enforce  it,  was  sufficient 
authority  to  the  Sheriff  into  whose  hands  it  came,  to  make  the  sale 
of  the  land  in  controversy.  The  Sheriff's  deed  proved  the  sale; 
and  the  legal  presumption  is  that  all  the  acts  of  the  officer  which 
preceded  the  sale  had  been  duly  performed.  Hihn  v.  Peck,  30  Cal. 
280;  Donahue  v.  McNulty,  24  id.  417;  Berry  v.  S.  F.  &  N.  P.  R.  R. 
Co.,  44  id.  643.  Every  intendment  must  be  indulged  in  favor  of 
the  validity  of  the  proceedings  not  inconsistent  with  the  record. 

But  it  is  urged  that  the  record  shows  that  the  judgment  was  not 
entered  when  the  execution  was  issued.  Nor  was  it  necessary  that 
it  should  have  been.  The  enforcement  of  a  judgment  does  not 
depend  upon  its  entry  or  docketing.  These  are  merely  ministerial 
acts,  the  first  of  which  is  required  to  be  done  for  putting  in  motion 
the  right  of  appeal  from  the  judgment  itself,  and  of  limiting  the 
time  within  which  the  right  may  be  exercised  (§  681,  C.  C.  P.),  or 
in  which  the  judgment  may  be  enforced  (§  685,  id.) ;  and  the  other, 
for  the  purjjose  of  creating  a  lien  by  the  judgment  upon  the  real 
property  of  the  debtor.     §  671,  C.  C.  P.     But  neither  is  necessary 


BANK    OF   GENESEE    V.    SPENCER  585 

for  the  issuance  of  an  execution  upon  a  judgment  which  has  been 
duly  rendered.  Without  doclceting  or  entry  execution  may  be 
issued  on  the  judgment  and  land  levied  upon  and  sold  (Hastings  v. 
Cunningham,  39  Cal.  144) ;  and  the  deed  executed  by  the  Sheriff, 
in  fulfillment  of  the  sale,  not  only  proves  the  sale,  but  also  estops 
the  defendant  from  controverting  the  title  acquired  by  it.  Dodge 
V.  Walley,  22  Cal.  224;  McDonald  v.  Badger,  23  id.  399;  Lessee  of 
Cooper  V.  Galbraith,  3  Wash.  C.  C.  550;  Blood  v.  Light,  38  Cal. 
649. 

The  finding  covers  the  issues.  Judgment  affirmed} 

McKiNSTRY  and  Ross,  i^.,  concurred  in  the  judgment. 


BANK   OF  GENESEE  v.   SPENCER. 

Court  of  Appeals  of  New  York.     1858. 

[Reported  18  New  York,  150.] 

Appeal  from  the  Supreme  Court.  Li  1846  the  plaintiff  re- 
covered judgment  in  that  court  against  Spencer,  Thomas  and 
Burnet,  who  resided  in  different  counties,  and  execution  was  imme- 
diately issued  to  the  sheriffs  of  each  of  the  counties,  and  was  by 
them  respectively  returned  unsatisfied.  Burnet  having  died,  the 
plaintiff,  in  1854,  issued  an  execution  to  the  sheriff  of  Erie  county, 
where  Spencer  then  resided,  against  him  and  Tliomas,  the  surviv- 
ing defendants,  without  any  application  to  the  court  for  leave  to  do 
so.  This  execution  having  been  returned  unsatisfied,  the  plaintiff 
instituted  proceedings  supplementary  thereto  before  the  county 
judge  of  Erie,  before  whom  Spencer  was  compelled  to  appear,  and 
an  order  of  reference  to  take  his  examination  was  made  on  the  24th 
February,  1855.  He  appealed  from  that  order  to  the  Supreme 
Court,  by  which  it  was  affirmed,  and  he  then  appealed  to  this  court. 
Pending  the  last  appeal,  and  in  October,  1855,  he  moved  the 
Supreme  Court,  at  special  term,  to  set  aside  the  execution  for 
irregularity.  The  motion  was  denied,  and  the  order  denying  it 
having  been  affirmed  at  general  term  in  the  eighth  district,  Spencer 
appealed  to  this  court. 

Denio,  J.-  I  am  of  opinion  that  the  execution  which  the  Su- 
preme Court  was  applied  to  to  set  aside  was  not  void  but  only 

1  See  Doughty  v.  Meek,  105  la.  16,  74  N.  W.  744. 

As  to  the  protection  given  to  purchasers  without  notice  of  the  judgment 
see  Ninde  v.  Clark,  62  Mich.  124,  28  N.  W.  765,  4  Am.  St.  Rep.  823.  —  Ed. 
'^  A  concurring  opinion  of  Piatt,  J.,  is  omitted.  —  Ed. 


586  THE    ENFORCEMENT   OF   JUDGMENTS 

voidable.  There  was  a  judgment  which  warranted  such  process, 
and  it  had  not  been  paid  or  released.  The  practice  of  the  court, 
now  regulated  in  that  particular  by  statute,  forbade  the  issuing  of 
execution,  after  the  lapse  of  five  years,  without  an  application  to 
the  court,  or  notice  and  proof  that  the  judgment  or  a  part  of  it 
remained  unsatisfied,  (Code,  §§  283,  284.)  Generally,  where  an 
act  is  done  contrary  to  the  provisions  of  a  statute,  it  is  wholly  void, 
unless  it  fall  within  the  class  of  merely  directory  provisions,  the 
omission  to  conform  to  which  does  not  wholly  vitiate  the  proceed- 
ing. This  is  not  a  case  of  that  kind.  But  when  the  whole  practice 
of  the  court  came  to  be  regulated  by  statute,  it  was  foreseen  by  the 
legislature  that  great  inconvenience  would  ensue  from  the  principle 
referred  to,  as  it  would  preclude  the  courts  from  relieving  parties 
from  slips  in  practice,  arising  from  inadvertant  omissions  and  mis- 
takes. This  power  was  very  useful,  and  indeed  indispensable,  for 
without  it  there  would  be  danger,  in  any  stage  of  the  case,  that  the 
rights  of  parties  might  be  sacrificed  to  the  requirements  of  form.  It 
was  necessary,  therefore,  to  qualify  the  rule  of  the  common  law  as 
to  the  effect  of  statutes,  and  section  174  of  the  Code  was  inserted 
for  that  purpose.  The  general  intention  of  this  section  is  to  render 
the  statutory  rules  of  practice  equally  flexible  with  those  which  the 
courts  had  established  to  regulate  their  proceedings.  It  declares, 
among  other  things,  that  the  court  may,  in  its  discretion  and  upon 
such  terms  as  may  be  just,  "  supply  an  omission  in  any  proceed- 
ing," and  that  "  whenever  any  proceeding  taken  by  a  party  fails  to 
conform  in  any  respect  to  the  provisions  of  this  Code,  the  court 
may,  in  like  manner  and  on  like  terms,  permit  an  amendment  of 
such  proceeding,  so  as  to  make  it  conformable  thereto." 

There  was  always  a  time  after  which  a  party  who  had  recovered 
a  judgment  was  not  at  liberty  to  sue  out  execution  without  an 
application  to  the  court.  Formerly,  the  time  was  a  year  and  a  day; 
and  the  form  of  obtaining  an  award  of  execution,  when  one  had 
not  been  issued  in  time,  was  by  scire  facias  quare  executionem  non. 
Afterwards  it  was  extendeci  by  the  Revised  Statutes  to  two  years. 
(2  R.  S.,  363,  §  1.)  By  the  Code  it  was  further  extended,  as  we 
have  seen,  to  five  years,  and  the  mode  of  obtaining  leave  was  an 
application  to  the  court  on  motion.  Under  the  former  practice, 
it  was  well  settled  that  the  execution,  if  issued  too  late,  was  not 
void.  Woodcock  v.  Bennet,  1  Cow.,  711.  It  was  liable  to  be  set 
aside  on  motion,  })ut  such  motion,  like  all  others,  must  be  made 
promptly;  and  if  it  appeared  that  the  defendant  had  consented  to 
the  execution  being  issued,  or  if  there  were  any  circumstances 


GOWAN    V.    FOUNTAIN  587 

which  in  fairness  and  equity  precluded  him  from  avaiUng  himself  of 
the  irregularity,  the  motion  would  not  prevail.  Morris  v.  Jones, 
2  Barn.  &  Cres.,  232.  There  is  no  reason  why  the  same  practice 
should  not  obtain  under  the  Code.  The  section  above  cited  would 
enable  the  court,  in  its  discretion,  to  relieve  the  plaintiff,  and  to 
uphold  the  execution,  though  irregularly  issued,  upon  such  excuse 
as  it  should  consider  satisfactory,  and  subject  to  such  terms  and 
conditions  as  it  might  think  fit  to  impose. 

The  question,  therefore,  whether  this  execution  ought  to  have 
been  set  aside,  addressed  itself  to  the  discretion  of  the  Supreme 
Court,  and  it  was  a  matter  of  practice  of  the  same  nature  with  the 
mass  of  questions  relating  to  the  regularity  of  proceedings  which 
daily  come  before  that  court.  If  the  motion  which  was  made  to 
set  it  aside  was  a  summary  application  after  judgment,  the  decision 
was  not  an  order  affecting  a  substantial  right  within  the  3d  sub- 
division of  section  11  of  the  Code.  It  related  to  the  form  and 
order  of  proceedings,  and  was  the  exercise  of  the  jurisdiction  of  the 
court  to  control  and  regulate  its  process.  Orders  in  such  cases  are 
not  the  subjects  of  appeal  here. 

Selden  and  Harris,  Js.,  were  absent;  all  the  other  judges 
concurring,  Appeal  dismissed.^ 


GOWAN  V.   FOUNTAIN  et  al. 
Supreme  Court  of  Minnesota.     1892. 
[Reported  50  Minnesota,  264.] 

Appeal  by  plaintiff,  Mary  M.  Gowan,  from  a  judgment  of  the 
District  Court  of  Chippewa  County,  Powers,  J.,  entered  December 
31,  1891. 

On  November  4,  1881,  plaintiff  recovered  judgment  in  the  Dis- 
trict Court  of  Swift  County  against  Hannah  J.  Bensel,  for 
$1,014.49.  This  judgment  was  docketed  in  Chippewa  County  on 
December  2,  1889.  A  writ  of  execution  was  issued  on  November 
26,  1889,  and  delivered  to  plaintiff's  attorney,  together  with  a 
transcript  of  the  judgment,  with  directions  to  file  the  transcript 
with  the  Clerk  of  the  Court  in  Chippewa  County,  and  then  fill  up 
the  blank  date  of  doing  it  in  the  execution,  and  hand  it  to  the  Sheriff 

^  Mariner  v.  Coon,  16  Wis.  465,  accord.  Compare  Blanchenay  v.  Burt.  4  Q. 
B.  707.     See  1  Freeman,  Executions,  3d  ed.,  sec.  29;  8  Encyc.  of  PI.  &  Pr.  360. 

As  to  the  validity  of  a  levy  executed  after  the  return  day  of  the  ^vrit,  see 
Hathaway  v.  Howell,  54  N.  Y.  97;  8  Encyc.  of  PI.  &  Pr.  493-496.  —  Ed. 


588  THE    ENFORCEMENT    OF   JUDGMENTS 

of  that  county.  This  was  done,  and  he  levied  upon  and  sold  Mrs. 
Bensel's  hotel  property  in  Montevideo,  to  the  plaintiff.  The  prop- 
erty was  not  redeemed,  and  this  action  of  ejectment  was  begun 
against  Mrs.  Bensel  and  her  tenants,  the  other  defendants  Joseph 
Fountain  and  Jemiie  Fountain.  R.  W.  Dumi  died  in  1879,  seised 
of  this  hotel  property,  and  occupying  it  as  his  homestead.  His 
widow  married  a  Mr.  Bensel,  and  in  1885  removed  from  the  hotel 
onto  a  farm.  Defendants  had  judgment  that  the  execution  sale 
was  void  and  that  Mrs.  Gowan  take  nothing. 

Mitchell,  J.  The  only  questions  raised  by  this  appeal  involve 
the  validity  of  the  execution  sale  under  which  plaintiff  claims  title 
to  the  real  estate  in  controversy. 

Judgment  was  rendered  and  docketed  in  the  district  court  in  and 
for  Swift  county  in  favor  of  the  plaintiff  and  against  the  defendant 
Bensel. 

The  clerk  of  the  court  in  that  county  "  issued  "  (to  use  the  lan- 
guage of  the  findings)  an  execution  on  the  judgment  directed  to  the 
sheriff  of  Chippewa  county  (in  which  the  land  in  question  is 
situated),  in  which  the  date  of  docketing  the  judgment  in  the  latter 
county  was  left  blank,  and  at  the  same  time  "  issued  "  a  transcript 
of  the  judgment,  and  delivered  both  to  plaintiff's  attorney,  with 
directions  to  him  to  have  the  date  when  the  judgment  should  be 
docketed  in  Chippewa  county  inserted  in  the  execution  before  it 
was  delivered  to  the  sheriff  for  service.  The  attorney  transmitted 
both  to  the  clerk  of  the  court  of  Chippewa  county,  with  instructions, 
after  the  transcript  was  filed,  and  the  judgment  docketed  in  that 
county,  to  insert  the  date  of  such  docketing  in  the  execution. 
Pursuant  to  these  instructions,  the  clerk  in  Chippewa  county  filed 
the  transcript,  and  docketed  the  judgment,  and  inserted  the  date 
thereof  in  the  execution,  and  returned  it  to  the  attorney,  by  whom 
it  was  thereafter  delivered  for  service  to  the  sheriff  of  Chippewa 
county,  who  proceeded  thereunder  to  levy  upon  and  sell  the  land  in 
question.  It  will  be  observed  from  this  that  the  judg-ment  had 
been  docketed  in  Chippewa  county  before  the  execution  was  de- 
livered to  the  sheriff,  and  that  the  fact  and  date  of  such  docketing 
were  then  correctly  stated  therein. 

The  line  of  reasoning  by  which  it  is  sought  to  establish  the  propo- 
sition that  this  execution  was  void  is  substantially  as  follows: 
That  at  common  law  all  process  of  courts  is  limited  to  the  territory 
over  which  their  jurisdiction  extends;  that  the  territorial  jurisdic- 
tion of  the  district  court  in  and  for  a  particular  county  is  limited  to 
the  county  in  which  it  is  held;  that,  therefore,  the  district  court  has 


GOWAN    V.    FOUNTAIN  589 

no  authority  to  issue  an  execution  to  another  county,  except  that 
conferred  by  statute,  which  is  Hmited  to  counties  where  the  judg- 
ment is  docketed  (1878  G.  S.  ch.  66,  §299);  that  consequently 
such  docketing  is  a  condition  precedent  to  the  authority  to  issue  an 
execution,  which  jurisdictional  fact  must  appear  on  the  face  of  the 
execution  when  issued  (Id.  §  295) ;  that  this  execution,  having 
been  issued  before  the  judgment  was  docketed  in  Chippewa  county, 
was  absolutely  void.  This  is  sul^stantially  the  line  of  reasoning 
advanced  by  Justice  Ryan,  spealdng  for  the  court,  in  Kentzler  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  47  Wis.  641  (3  N.  W.  Rep.  369). 
We  do  not  find  it  necessary  to  determine  in  this  case  whether  it  is 
sound  or  not.  We  may  remark,  however,  that  it  seems  to  us  more 
severely  logical  than  practical,  and  w^e  are  by  no  means  clear  that 
under  our  judicial  system  it  is  correct  to  say  that  the  territorial 
jurisdiction  of  the  district  court  is  limited  to  the  countj^  in  which  it 
sits,  especially  in  view  of  the  provisions  of  1878  G.  S.  ch.  64,  §  3. 

But,  conceding  the  soundness  of  the  doctrine,  its  applicability  to 
the  present  case  depends  upon  the  assumption  that  this  execution 
was  issued  at  the  date  on  which  it  was  made  out  by  the  clerk  of  the 
court  of  SAvift  county,  and  by  him  delivered  to  plaintiff's  attorney. 
If  this  premise  is  false,  of  course  the  conclusion  falls  with  it.  The 
delivery  to  the  attorney  was  not  unqualified,  but  only  provisional 
and  conditional;  the  condition  being  that  the  judgment  should  be 
docketed  in  Chippewa  county,  and  the  date  thereof  inserted  in  the 
execution  before  it  was  delivered  to  the  sheriff  for  service.  It  was 
issued,  in  the  sense  of  being  taken  from  the  clerk's  office,  before  the 
judgment  was  docketed  in  Chippewa  county,  but  the  judgment 
was  docketed  in  that  county  before  the  execution  was  issued  in 
the  sense  of  being  delivered  to  the  sheriff  for  service;  and  this  is, 
in  legal  contemplation,  the  date  of  the  issue  of  an  execution.  This 
was,  in  substance,  what  was  held  in  Mollison  v.  Eaton,  16  Minn. 
426  (Gil.  383).  It  is  true  that  in  that  case  the  levy  was  on  per- 
sonal property,  but,  as  respects  the  authority  to  issue  an  execution 
to  another  county,  we  cannot  see  how^  that  makes  any  difference. 
The  practice  adopted  in  the  present  case  has  obtained  in  this  state 
from  a  very  early  date.  It  is  an  eminently  convenient  one,  and 
injures  nobody.  Our  conclusion,  therefore,  is  that  the  execution 
and  the  sale  under  it  w^ere  valid. 

The  land  in  question  was,  at  the  time  of  his  death,  the  home- 
stead of  defendant  Bensel's  deceased  husband,  and  as  such  she  had 
a  life  estate  in  the  property.  She  occupied  it  as  her  homestead  for 
some  time  after  her  husband's  death;  ])ut  several  years  before  the 


590  THE    ENFORCEMENT   OF   JUDGMENTS 

levy  under  plaintiff's  execution  she  had  ceased  to  occupy  it,  and  had 
removed  to  another  place,  which  she  has  ever  since  occupied  as  her 
home.  This  constituted  an  abandonment  of  the  premises  as  a 
homestead  unless  she  had  filed  the  notice  required  by  statute.  Of 
this  there  was  no  proof,  and  the  burden  of  proving  it,  if  the  fact 
existed,  was  on  her.  Having  been  the  homestead  of  her  husband, 
her  life  estate  in  the  land  was  not  subject  to  his  debts;  but  to 
exempt  it  from  her  own  debts  she  must  have  occupied  it  as  her 
homestead,  precisely  as  any  one  else  has  to  do. 

Judgment  reversed,  and  cause  remanded,  with  directions  to 
enter  judgment  for  the  plaintiff  for  the  possession  of  the  premises, 
and  for  damages  for  withholding  the  same  since  the  commencement 
of  the  action  in  accordance  with  the  findings  of  fact.^ 


HUNT  V.   LOUCKS. 

Supreme  Court  of  California.     1869. 

[Reported  38  California,  372.] 

Sanderson,  J.  delivered  the  opinion  of  the  Court.^ 

The  plaintiff  claimed  title  founded  upon  a  sale  under  an  execu- 
tion, to  which  neither  he  nor  the  defendant's  lessor  was  a  party. 
In  support  of  his  claim  he  produced  at  the  trial  a  judgment,  execu- 
tion and  Sheriff's  deed.  To  this  testimony  the  defendant  de- 
murred, upon  three  grounds:  First  —  That  the  execution  was 
void,  because  it  varied  materially  from  the  judgment;  Second  — 
That  it  was  void,  because  it  appeared  upon  its  face  to  have  been 
issued  upon  two  separate  judgments;  Third  —  Because  the  return, 
endorsed  upon  the  execution,  did  not  show  a  sufficient  levy. 

In  view  of  these  objections,  the  Court  below  excluded  the  testi- 
mony, and  the  plaintiff  was  accordingly  nonsuited.  Whether  this 
testimony  ought  to  have  been  admitted,  is  the  only  question 
presented  for  our  consideration. 

First  —  The  ground  of  the  first  objection  was,  that  the  execution 
called  for  $695  more  than  the  face  of  the  judgment.  Was  it  for 
that  reason  void,  and  therefore  the  sale  also  ?  We  think  it  was 
only  voidable,  and  therefore  the  sale  valid. 

1  See  McDonald  v.  Fuller,  11  S.  D.  35.'5,  77  N.  W.  581. 

As  to  the  validity  of  proces-s  issued  subsequently  to  the-  entry  of  judgment 
but  prior  to  the  time  authorized  by  statute  or  rule  of  court,  see  Penniman  v. 
Cole,  8  Met.  (Mass.),  496;   Bacon  v.  Cropscy,  7  N.  Y.  195.  —  Ed. 

2  A  part  of  the  opinion  is  omitted.  —  Ed, 


HUNT   V.    LOUCKS  591 

It  cannot  be  denied  that  to  sustain  a  title  founded  upon  a  Sheriff's 
sale,  a  judgment  must  be  produced;  an  execution,  which  the  Judge 
can  affirm,  was  issued  upon  the  judgment  produced,  and  a  deed 
which  was  given  in  pursuance  of  the  execution  and  the  sale  under 
it.  Unless  it  appear  that  the  judgment,  execution  and  deed  are 
links  of  the  same  chain,  the  title  will  fail.  But  a  question  of  vari- 
ance between  them  must  not  be  confounded  with  the  question  of 
their  validity.  The  two  propositions  are  quite  separate  and  dis- 
tinct. The  former  is  a  question  of  identity  only  —  the  latter 
assumes  or  concedes  the  identity,  and  goes  only  to  the  validity  of 
the  suspected  instrument.  If  the  execution  differs  so  materially 
from  the  judgment  that  the  Judge  cannot  affirm  that  the  former 
was  issued  upon  the  latter,  his  conclusion  is,  not  that  the  execution 
is  void,  but  that  it  was  not  issued  upon  the  judgment  which  has 
been  exhibited  with  it.  The  conditions  upon  which  the  two  ques- 
tions arise,  are  not  only  different,  but  the  question  of  void,  or 
voidable,  does  not  arise  until  the  question  of  variance  has  been 
considered. 

That  this  execution  was  issued  upon  the  judgment  which  was 
exhibited  with  it  does  not  admit  of  a  rational  doubt.  The  recitals 
in  the  execution  correspond  with  the  judgment  in  every  particular, 
except  as  to  the  amount;  the  Court,  the  date,  the  parties,  the 
general  character  of  the  judgment,  are  all  correctly  stated  in  the 
execution;  and  it  is  not  pretended  that  there  is,  or  was,  any  other 
judgment  of  the  same  Court,  of  the  same  date,  between  the  same 
parties  and  of  the  same  general  character  upon  which  the  execution 
could  have  been  issued.  Such  being  the  case,  there  is  no  rational 
ground  for  saying  that  the  judgment  and  execution  are  not  parts  of 
the  same  judicial  proceedings;  and  we  do  not  understand  counsel 
as  disputing  this  proposition,  but  as  conceding  it,  and  insisting  only 
that  the  execution  is  void,  because  it  calls  for  too  much  money. 

That,  as  a  general  rule,  an  execution  must  follow  the  judgment, 
and  conform  to  it,  and  that  if  it  varies  materially  from  it,  it  will  be 
set  aside,  or  quashed,  or  amended,  as  the  case  may  be,  upon  the 
motion  of  the  parties  to  it,  who  are  prejudiced  by  the  error,  is 
undoubtedly  true,  as  appears  by  the  cases  cited  by  counsel.  But, 
that  and  nothing  more  being  shown,  we  have  made  but  little  prog- 
ress in  the  present  case.  The  question  is  not  as  to  what  the  Court 
would  have  done  with  this  execution  if  the  defendants  in  the 
judgment  had  moved  to  set  it  aside  —  to  quash,  or  amend  it,  as 
they  might  have  done.  If  such  was  the  question,  it  could  be 
readily  answered.      The  Court  would  not  have  set  it  aside,  but 


592  THE  ENFORCEMENT  OF  JUDGMENTS 

would  have  allowed  it  to  be  amended  so  as  to  conform  to  the  judg- 
ment; that  is  to  say,  it  would  have  quashed  it  only  as  to  the 
excess.  Stevenson  v.  Castle,  1  Chit.  349;  King  v.  Harrison,  15 
East,  615;  Morrys  v.  Leake,  8  T.  R.  416,  note  a;  McCollum  v. 
Hubbert,  13  Ala.  282.  But  quite  a  different  question  is  here 
presented  —  one  which  rests  upon  entirely  different  conditions,  and 
involves  altogether  different  principles:  It  is  as  to  what  ought  to 
be  done  with  such  an  execution  when  it  comes  before  the  Court 
collaterally  as  evidence  of  title  in  an  action  which  is  not  even 
between  the  parties  to  the  execution,  but  between  entire  strangers 
to  it,  and  where  it  is  not  pretended  that  the  execution  was  ever,  at 
any  time,  even  after  the  sale,  set  aside  upon  the  application  of  the 
parties,  who  alone  were  injured  by  the  error. 

We  understand  the  settled  rule  to  be  that  if  the  execution  be 
merely  erroneous  —  that  is  to  say,  voidable  —  a  sale  under  it  to  a 
bona  fide  purchaser  will  be  valid,  although  the  execution  be  after- 
wards set  aside;  but  if  the  execution  be  irregular  —  that  is  to  say, 
void  —  a  sale  under  it,  even  to  a  bona  fide  purchaser,  will  also  be 
void.     Woodcock  v.  Bennet,  1  Cow.  711.  .  .  . 

That  executions  which  are  merely  voidable  cannot  be  attacked 
collaterally  admits  of  no  debate,  where,  as  in  this  State,  the  com- 
mon law  controls  the  question.  A  collateral  attack  can  no  more  be 
made  upon  an  erroneous  execution  than  upon  an  erroneous  judg- 
ment. Like  an  erroneous  judgment,  an  erroneous  execution  is 
valid  until  set  aside  upon  a  direct  proceeding  brought  for  that 
purpose;  and,  until  set  aside,  all  acts  which  have  been  done  under  it 
are  also  valid.  In  a  collateral  action,  it  cannot  be  brought  in 
question,  even  by  a  party  to  it,  much  less,  as  in  this  case,  by  a 
stranger  to  it.  Even  directly  it  cannot  be  attacked  by  a  stranger, 
for  it  does  not  lie  in  the  mouth  of  A  to  say  by  it  B  has  been  made 
to  pay  too  much  money,  and  that  therefore  all  proceedings  under 
it  are  null  and  void.  That  is  a  question  which  concerns  B  only,  and 
if  he  is  content  A  cannot  complain.  Nor  if  B,  who  is  bound  to 
know  of  the  variance  between  the  judgment  and  the  execution, 
does  not  interpose  by  motion  for  its  correction,  ought  he  to  be 
allowed  to  question  the  title  of  a  purchaser  under  it  —  it  may  be 
years  afterward  ?  He  has  a  remedy  by  motion  to  amend,  or  by 
action  to  recover  the  excess  of  the  levy  from  the  plaintiff  in  the 
execution,  and  the  Clerk,  also;  besides,  with  full  knowledge  of  all 
defects,  he  has  allowed  the  Sheriff,  acting  as  his  agent  in  the  matter, 
to  sell,  and  the  purchaser  to  buy,  without  opening  his  lips,  and  in  all 
fairness  and  justice  to  the  latter,  he  must  keep  them  closed  forever. 


MCCLURE    V.    LOGAN  593 

Blood  V.  Light,  present  term;  Jackson  v.  Bartlett,  8  John.  361; 
Jackson  v.  Robbins,  16  Id.  537;  Marmer  v.  Coon,  16  Wis.  465; 
Elliott  V.  Knott,  14  Md.  121. 

Second  —  The  ground  upon  which  the  second  objection  to  the 
execution  rests  is,  that  it  included  the  costs  of  an  appeal  from  the 
judgment  to  this  Court.     It  was  proper  and  regular  that  it  should. 

Third  —  The  last  objection  rests  upon  the  ground  that  the  return 
endorsed  upon  the  execution  does  not  contain  a  report  in  detail  of 
the  acts  of  the  officer  in  making  the  lev3^  It  was  not  necessary 
that  it  should.  If  the  return  be  defective  for  the  reason  suggested, 
or  for  any  other  reason,  the  purchaser  would  not  be  affected  by  the 
defect.  Whether  the  return  be  good  or  bad,  sufficient  or  insuffi- 
cient, is  a  matter  of  no  moment  to  the  purchaser,  for  his  title 
depends  upon  it  in  no  respect  whatever. 

Judgment  reversed  and  a  new  trial  granted. 

Sprague,  J.,  expressed  no  opinion.^ 


McCLURE  V.   LOGAN. 

Supreme  Court  of  Missouri.     1875. 

[Reported  59  Missouri,  234.] 

Sherwood,  J.  In  a  proceeding  to  cancel  certain  deeds,  the  court 
below  held  that  a  purchaser,  at  a  judicial  sale,  took  no  title  to  land 
purchased,  although  he  purchased  in  good  faith  and  without  notice; 
that  the  judgment  was  satisfied  prior  to  the  sale,  under  the  execu- 
tion issued  thereon. 

The  point  was  considered  in  Reed  v.  Heirs  of  Austin,  9  Mo.,  722; 
but  there  was  a  di\asion  of  opinion  in  regard  to  it;  the  majority  of 
the  court  holding  that  the  purchaser  obtained  a  title  not^vithstand- 
mg  the  previous  satisfaction  of  the  judgment.  The  subject  was 
not,  however,  extensively  nor  elaborately  discussed,  nor  were  the 
authorities  cited  in  support  of  that  view.  Jackson  v.  Caldwell,  1 
Cow.,  622;  Jackson  v.  Anderson,  4  Wend.,  474,  directly  in  point. 

In  the  subsequent  case  of  Durette  v.  Briggs,  47  Mo.,  356,  the 
matter  underwent  a  more  thorough  discussion,  when  a  conclusion 
in  conformity  to  that  arrived  at  by  the  trial  court  in  the  case  at  bar 
was  reached.  So,  also,  Durfee  v.  Moran,  decided  at  our  last  August 
term,  although  containing  other  elements  on  which  the  decision  of 
that  case  might  have  rested,  yet  on  the  point  in  hand  arrives  at  the 
result  just  indicated. 

1  See  Alderson,  Jadicial  Writs  and  Process,  sees.  49-55.  —  Ed. 


594  THE    ENFORCEMENT    OF   JUDGMENTS 

And  though  there  is  a  conflict  of  authority  in  regard  to  the  valid- 
ity of  a  purchase  made  under  the  circumstances  heretofore  men- 
tioned, it  is  confidently  believed  that  the  current  of  judicial  opinion 
will  be  found  in  accord  with  that  adopted  by  our  own  court,  in  its 
more  recent  decisions.  Ror.  Jud.  Sales,  §  722;  Jackson  v.  Morse, 
18  Johns.,  441;  Wood  v.  Colvin,  2  Hill,  566;  Carpenter  v.  Stillwell, 
11  N.  Y.,  61,  Craft  v.  Merrill,  14  Id.,  456;  Hammatt  v.  Wyman,  9 
Mass.,  138;  King  v.  Goodwin,  16  Id.,  64;  Swan  v.  Saddlemire,  8 
Wend.,  676,  and  cases  cited. 

The  principle  on  which  these  decisions  rest,  is  that  the  existence 
of  the  debt,  whose  collection  is  the  sole  object  of  the  issuance  of  the 
fi.  fa.,  is  the  basis  on  which  the  power  to  sell  alone  depends;  that 
when  the  debt  is  extinguished,  the  authority  under  and  virtue  of 
the  execution  dies  with  it,  and  that  he  who  buys  under  a  power 
buys  at  his  peril,  and  takes  nothing  by  his  purchase  if  the  alleged 
power  does  not  exist.  And  no  good  reason  is  perceived,  why  the 
same  principle  is  not  applicable  in  a  case  like  the  present,  as  would 
be  applied  to  one  where  the  authority  is  conferred  by  the  act  of  the 
parties  rather  than  that  of  the  law. 

If  the  principal  is  dead,  although  the  purchaser  is  unaware  of  the 
fact,  and  acts  in  the  most  perfect  good  faith,  yet  his  purchase  from 
the  agent  is  a  nullity  and  no  title  ensues  therefrom.  Such  hazards 
are  the  inevitable  incidents  which  attend  the  doings  of  all  acting 
under  delegated  powers,  whether  conferred  by  some  private  person 
or  by  the  law. 

There  were  none  of  the  ingredients  of  an  equitable  estoppel  in 
this  case.  The  plaintiff,  who  resides  in  Louisville,  Ky.,  had  set- 
tled up  the  judgment  and  all  costs  in  full,  in  October,  1869,  and  the 
sale  did  not  take  place  until  the  following  April;  and  having  the 
judgment  satisfied  under  the  agreement  devolved  entirely  on  the 
plaintiff  in  the  judgment,  and  on  its  agents.  There  is  no  ground 
then  to  impute  laches  in  this  regard  to  McClure,  or  to  hold  him 
estopped  by  a  state  of  facts  of  which  he  was  wholly  ignorant. 

The  judgment  is  affirmed,  all  the  judges  concur.^ 

Statute  13  Edward  I,  Chapter  17.     (1285.) 

[1  Statutes  at  Large,  194.] 

When  Debt  is  recovered  or  knowledged  in  the  King's  Court,  or 
Damages  awarded,  it  shall  be  from  henceforth  in  the  election  of 

1  Luddington  v.  Peck,  2  Conn.  TOO;  Williams  v.  Gill  &  Co.,  6  J.  J.  Marsh. 
(Ky.),  487,  contra.  See  1  Freeman,  Executions,  3d  ed.,  sec.  19;  8  Eneyc.  of 
PL  &  Pr.  323.  —  Ed. 


STATUTE    OF    FRAUDS  595 

him  that  sueth  for  such  Debt  or  Damages,  to  have  a  Writ  of  Fieri 
Facias  mito  the  Sheriff  for  to  levy  the  Debt  of  the  Lands  and 
Goods,  —  or  that  the  Sheriff  shall  deliver  to  him  all  the  Chattels 
of  the  Debtor  (saving  only  his  Oxen  and  Beasts  of  his  Plough)  and 
the  one  half  of  his  Land,  until  the  Debt  be  levied  upon  a  reasonable 
Price  or  Extent.  And  if  he  be  put  out  of  the  Tenement,  he  shall 
recover  by  a  Writ  of  Novel  disseisin,  and  after  by  a  Writ  of  Re- 
disseisin,  if  need  be. 

Statute  29  Charles  II,  Chapter  3.     (1676.) 

[8  Statutes  at  Large,  408.] 

XIII.  And  whereas  it  hath  been  found  mischievous,  that 
judgments  in  the  King's  Courts  at  Westminister  do  many  times 
relate  to  the  first  day  of  the  term  whereof  they  are  entred,  or  to  the 
day  of  the  return  of  the  original,  or  filing  the  bail,  and  bind  the 
defendants  lands  from  that  time,  although  in  truth  they  were 
acknowledged  or  suffered  and  signed  in  the  vacation-time  after 
the  said  term,  whereby  many  tmies  purchasers  find  themselves 
agrieved : 

XIV.  Be  it  enacted  by  the  authority  aforesaid,  That  from  and 
after  the  said  four  and  twentieth  day  of  June  [1677]  any  judge  or 
officer  of  any  of  his  Majesty's  courts  at  Westminster,  that  shall 
sign  anj^  judgments,  shall  at  the  signing  of  the  same,  without  fee 
for  doing  the  same,  set  down  the  day  of  the  month  ai^d  year  of 
his  so  doing,  upon  the  paper  book,  docket  or  record  which  he  shall 
sign;  which  day  of  the  month  and  j^ear  shall  be  also  entred  upon 
the  margent  of  the  roll  of  the  record  where  the  said  judgment  shall 
be  entred. 

XV.  And  be  it  enacted.  That  such  judgments  as  against  pur- 
chasers bo7ia  fide  for  valuable  consideration  of  lands,  tenements  or 
hereditaments  to  be  charged  thereby,  shall  in  consideration  of  law 
be  judgments  only  from  such  time  as  they  shall  be  so  signed,  and 
shall  not  relate  to  the  first  day  of  the  term  whereof  they  are  entred, 
or  the  day  of  the  return  of  the  original  or  filing  the  bail ;  any  law, 
usage  or  course  of  any  court  to  the  contrary  notwithstanding. 

XVI.  And  be  it  further  enacted  by  the  authority  aforesaid. 
That  from  and  after  the  said  four  and  twentieth  day  of  June  no 
writ  of  Fieri  facias  or  other  writ  of  execution  shall  bind  the  prop- 
erty of  the  goods  against  whom  such  writ  of  execution  is  sued 
forth,  but  from  the  time  that  such  writ  shall  be  delivered  to  the 
sheriff,  under-sheriff  or  coroners  to  be  executed ;  and  for  the  bet- 


596  THE    ENFORCEMENT    OF   JUDGMENTS 

ter  manifestation  of  the  said  time,  the  sheriff,  mider-sheriff  and 
Coroners,  tlieir  deputies  and  agents,  shall  upon  the  receipt  of  any 
such  writ  (without  fee  for  doing  the  same)  endorse  upon  the  back 
thereof  the  day  of  the  month  or  [and]  year  whereon  he  or  they 
received  the  same. 

Statute  5  George  II,  Chapter  7.     (1732.) 
[16  Statutes  at  Large,  272.] 

Whereas  his  Majesty's  subjects  trading  to  the  British  planta- 
tions in  America  lie  under  great  difficulties,  for  want  of  more  easy 
methods  of  proving,  recovering  and  levying  of  debts  due  to  them, 
than  are  now  used  in  some  of  the  said  plantations:  and  whereas 
it  will  tend  very  much  to  the  retrieving  of  the  credit  formerly  given 
by  the  trading  subjects  of  Great  Britain  to  the  natives  and  inhabi- 
tants of  the  said  plantations,  and  to  the  advancing  of  the  trade  of 
this  kingdom  thither,  if  such  inconveniences  were  remedied,  .  .  . 

IV.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
from  and  after  the  said  twenty  ninth  day  of  September,  one  thou- 
sand seven  hundred  and  thirty  two,  the  houses,  lands,  negroes,  and 
other  hereditaments  and  real  estates,  situate  or  being  within  any  of 
the  said  plantations  belonging  to  any  person  indebted,  shall  be 
liable  to  and  chargeable  with  all  just  debts,  duties  and  demands 
of  what  nature  or  kind  soever,  owing  by  any  such  person  to  his 
Majesty,  or  any  of  his  subjects,  and  shall  and  may  be  assets  for  the 
satisfaction  thereof,  in  like  manner  as  real  estates  are  by  the  law  of 
England  liable  to  the  satisfaction  of  debts  due  by  bond  or  other 
specialty,  and  shall  be  subject  to  the  like  remedies,  proceedings  and 
process  in  any  court  of  law  or  equity,  in  any  of  the  said  plantations 
respectively,  for  seizing,  extending,  selling  or  disposing  of  any  such 
houses,  lands,  negroes,  and  other  hereditaments  and  real  estates, 
towards  the  satisfaction  of  such  debts,  duties  and  demands,  and  in 
like  manner  as  personal  estates  in  any  of  the  said  plantations 
respectively  are  seized,  extended,  sold  or  disposed  of,  for  the  satis- 
faction of  debts. 


porter's   lessee   v.   COCKE  597 


PORTER'S  LESSEE  v.   COCKE. 

Supreme  Court  of  Errors  and  Appeals  of  Tennessee. 

1823. 

[Reported  Peck,  30.] 

Brown,  J.  The  questions  presented  for  determination  by  this 
case  are,  first,  is  a  judgment  a  lien  on  the  lauds  of  the  debtor; 
second,  if  a  judgment  be  a  lien  on  the  lands  of  the  debtor,  in  what 
manner  may  this  lien  be  suspended  or  discharged;  and,  thirdly,  if 
Porter's  judgment  was  not  a  lien,  or  that  lien  were  by  any  means 
destroyed  before  the  sale  under  his  judgment,  and  if  the  sale  to 
Thomas  Cocke  was  fraudulent,  whether  he  is  not  protected  by  the 
statute  of  limitations  ? 

By  the  common  law,  lands  and  tenements  were  not  subject  to  be 
taken  in  execution  at  the  suit  of  a  common  person,  except  in  case  of 
an  heir;  to  remedy  this  obvious  defect,  came  the  13th  Ed.  1,  ch. 
18,  b\"  which  it  is  provided,  that  when  a  debt  is  recovered  or 
acknowledged  in  the  king's  court,  or  damages  awarded,  it  shall  be 
from  thence  forth  in  the  election  of  him  to  have  a  writ  that  the 
sheriff  fieri  facial  of  the  lands  and  goods,  or  that  the  sheriff  shall 
deliver  to  him  all  the  chattels  of  the  delator  &c.  and  the  one  half  of 
his  land,  until  the  debt  be  levied  upon  a  reasonable  price  in  extent. 
Upon  this  is  founded  the  writ  of  elegit,  by  which  all  the  goods  of  the 
debtor  are  delivered,  at  their  approved  value,  into  the  hands  of  the 
creditor,  and  the  one  half  of  his  lands  are  extended.  There  is 
nothing  in  this  statute  which  indicates  the  time  from  which  the 
land  shall  be  bound,  l^ut  by  construction  of  the  court  immediately 
after  its  enaction,  and  ever  since,  the  judgment  has  l^een  held  to 
bind  the  land,  and  the  plaintiff  might  have  execution  of  the  lands, 
which  defendant  had  at  the  time  of  the  judgment,  although  he  had 
aliened  them  bona  fide  before  execution  awarded.  This  construc- 
tion was  adopted  the  more  effectually  to  secure  the  just  rights  of 
creditors,  and  its  propriety  and  justice  have  never  been  questioned 
or  rendered  doubtful  by  the  experience  of  centuries.  This  is  the 
law  which  the  colonists  brought  with  them  from  the  mother 
country,  and  is  yet  the  law  unless  changed  by  statute.  A  short 
time  was  sufficient  to  convince  the  inhabitants  of  the  colonies,  and 
those  with  whom  they  had  commercial  transactions,  that  the  elegit 
was  wholly  insufficient,  as  a  process,  to  enforce  the  pajTnent  of 

1  Onlj'  the  opinion  on  this  point  is  given.  —  Ed. 


598  THE    ENFORCEMENT   OF   JUDGMENTS 

debts.  Much  of  the  lands  held  by  debtors,  was  wild  and  unculti- 
vated and  would  be  an  annual  incumbrance  to  the  creditor,  instead 
of  procuring  any  annual  profit.  Such  lands  as  were  improved  had 
no  fixed  or  certain  annual  value,  difficult  to  rent,  and  would  prob- 
ably produce  nothing  unless  the  creditor  would  become  the  occu- 
pier, which  was  not  often  convenient.  Thus,  in  fact,  the  lands  of 
the  debtor  though  of  considerable  intrinsic  value,  were  totally 
beyond  the  reach  of  the  creditor.  Again;  the  progress  of  com- 
merce, the  gradual  decline  of  feudal  notions  and  principles,  and  a 
more  enlightened  view  of  the  relative  rights  and  duties  of  men,  had 
shewn,  that  no  part  of  the  debtor's  property  should  be  withheld 
from  the  satisfaction  of  his  debts,  to  aid  the  creditor  by  subjecting 
all  the  debtor's  real  estate  to  legal  process  for  the  payment  of  debts, 
and  to  change  the  process,  making  such  estate  liable  to  sale  instead 
of  extent,  was  enacted  by  the  statute  of  5  Geo.  2,  ch.  7,  sec.  4,  in 
these  words. 

"  And  be  it  further  enacted  by  the  authority  aforesaid,  that 
from  and  after  the  29th  day  of  September,  1732,  the  houses,  lands, 
negroes,  and  other  hereditaments,  and  real  estate,  situate  or  being 
within  any  of  the  said  plantations,  belonging  to  any  person  in- 
debted, shall  be  liable  to,  and  chargeable  with,  all  just  debts,  duties 
and  demands  of  what  nature  or  kind,  soever,  owing  to  any  such 
person,  to  his  majesty,  or  any  of  his  subjects;  and  shall  be  assets 
for  the  satisfaction  thereof  in  like  maimer  as  real  estates  are  by  the 
law  of  England  liable  to  the  satisfaction  of  debts  due  by  bond  or 
other  specialty;  and  shall  be  subject  to  the  like  remedies,  proceed- 
ings and  process  in  any  court  of  law  or  equity  in  any  of  the  said 
plantations  respectively  for  seizing,  extending,  selling  or  disposing 
of  any  such  houses,  lands,  negroes,  and  other  hereditaments  and 
real  estate  towards  the  satisfaction  of  such  debts,  duties  and 
demands,  and  in  like  manner  as  personal  estate  in  any  of  the  said 
plantations  respectively  are  seized,  extended,  sold  or  disposed  of  for 
the  satisfaction  of  debts." 

When  examining  this  statute  with  a  view  to  the  determination  of 
the  present  question,  I  admit  it  should  be  read  as  if  the  words 
"  and  shall  be  assets  for  the  satisfaction  thereof,  in  like  manner  as 
real  estates  are  by  law  of  England,  liable  to  the  satisfaction  of 
debts  due  by  bond  or  other  specialty,"  were  not  in  the  section, 
because  they  do  most  clearly  relate  to  a  different  subject,  to  which 
the  comparison  there  made  is  peculiarly,  and  alone  applicable,  and 
thus  far  entirely  agrees  with  the  supreme  court  of  North  Carolina 
in  the  case  of v. ,  Murph.  Rep. 


porter's  lessee  v.   COCKE  599 

The  first  provision  in  the  section  is,  that  all  the  lands  &c.  of  per- 
sons indebted,  shall  be  liable  to,  and  chargeable  with,  all  just  debts, 
&c.  The  last  is,  that  the  lands,  &c.  shall  be  subject  to  be  seized 
extended,  sold  or  disposed  of,  by  any  process  in  any  court,  &c.  in 
like  manner  as  personal  estates  are  seized,  extended,  sold  or  dis- 
posed of,  for  the  satisfaction  of  debts. 

It  may  now  be  remarked  that  the  elegit  is  not  taken  away  from 
the  creditor  by  this  statute,  but  on  the  contrary,  is  in  express 
terms  recognized  and  preserved. 

If  the  first  provision  had  stood  alone,  the  effect  would  have  been 
simply  to  subject  all  the  debtor's  real  estate  to  be  extended  under 
the  elegit,  and  in  that  case  it  would  not  probably  be  contended  by 
any  one  that  the  binding  force  of  the  judgment  was  affected;  nor 
would  it  be  denied  that,  taking  the  whole  section  as  it  stands,  the 
judgment  would  bind  the  lands  if  the  creditor  elected  to  have  the 
writ  of  elegit.  But  it  is  argued  that  the  last  provision  destroys 
the  lien  of  the  judgment  if  the  party  resorts  to  a  sale  of  the  land,  and 
that  when  the  fieri  facias  is  applied  to  the  sale  of  land  by  this  sec- 
tion, all  the  incidents,  effects,  and  consequences  of  the  fiei'i  facias 
which  attend  it  when  applied  to  the  sale  of  personal  property,  are 
necessarily  introduced.  That  such  was  the  intention  of  the  legis- 
lature is  evinced  by  their  reference  to  the  sale  of  personal  estate; 
that  the  fi.  fa.  only  binds  goods  from  the  test  and  therefore  lands 
should  only  be  bound  from  the  test  of  the  fi.  fa.  when  it  is  used  to 
subject  them. 

We  will  examine  these  objections,  and  to  do  this  satisfactorily, 
we  will  see,  first,  whether  there  is  anything  in  the  statute  of  West- 
minster which  creates  this  lien;  second,  if  not,  whether  there  is 
anything  in  the  writ  of  elegit  which  produces  this  effect;  third,  why 
the  fi.  fa.  only  binds  from  the  test,  and  the  points  in  which  the  elegit 
and  fi.  fa.  agree  and  differ,  from  all  which  we  shall  perceive  upon 
what  basis  the  lien  of  a  judgment  does  rest,  and  whether  the^eri 
facias  destroys  that  basis. 

We  have  already  seen  that  there  are  no  express  words  in  the  stat. 
West,  which  indicates  the  binding  effect  of  the  judgment  on  lands; 
the  same  words  are  used  with  regard  to  goods  and  chattels,  as 
lands.  It  is  true,  in  the  writ  of  elegit  now  generally  in  use,  the 
sheriff  is  directed  to  deliver  such  lands  as  the  defendant  was  seized 
of,  on  the  day  of  the  rendition  of  the  judgment.  This  direction  is 
only  to  inform  the  sheriff  of  the  construction  of  law  made  upon  the 
statute,  and  is  merely  a  consequence  of  such  construction.  7th  Co. 
Rep.  131,  Sellington's  case;  for  many  writs  of  elegit  are  to  be  found 


600  THE    ENFORCEMENT   OF   JUDGMENTS 

in  books  of  most  approved  authority,  where  this  direction  is  alto- 
gether omitted,  Fitz.  N.  B.  594,  (266  in  mar.)  2,  Samid.  Rep.  68; 
and  the  forms  of  writs  used  in  judicial  proceedings,  Lord  Coke  tells 
us  are  only  the  evidence  of  what  the  law  is  and  do  not  make  the  law, 
nor  are  the  reasons  of  it.  The  writ  in  this  case,  was  framed  to 
carry  into  effect  the  statute,  with  such  construction  as  the  courts 
had  given  to  it. 

Now  we  will  examine  whether  the  lien  of  the  judgment  has  any 
dependence  on  the  process  used  to  execute  it,  or  whether  the  form 
of  the  execution  can  so  far  retrospect  upon  the  judgment  as  to  con- 
firm or  destroy  its  force;  for  if  it  should  be  found  that  the  lien  of 
the  judgment  in  England  does  depend  on  the  elegit,  then  the  argu- 
ment is  fair  to  say,  that  when  this  writ  is  not  used,  the  lien  is  re- 
linquished; but,  if  the  lien  of  the  judgment  has  no  connection  with 
the  execution  used,  and  depends  upon  other  circumstances  and 
reasons,  then  we  may  fairly  conclude  that  the  substitution  of  the 
fieri  facias  for  the  elegit  was  not  intended,  nor  does  destroy,  the  lien 
of  the  judgment. 

The  elegit  directs  the  sheriff  to  deliver  to  the  creditors  all  the 
goods  and  chattels  of  the  debtor  except  oxen  and  beasts  of  the 
plough,  and  also  a  moiety  of  his  lands  and  tenements. 

Here,  then,  is  the  same  execution  directed  against  several 
species  of  property,  and  if  the  binding  effect  of  this  judgment  de- 
pend on  the  writ,  all  will  be  bound  in  this  case  by  the  judgment. 
The  lands  are  bound;  yet  it  has  been  held  by  a  series  of  adjudged 
cases  from  the  year  books  down  to  this  time,  that  the  goods  and 
chattels  are  bound  in  this  case  only  from  the  test  of  the  elegit; 
1  Roll.  Ab.  893;  8  Co.  Rep.  171,  Fleetwood's  case;  3  Atk.  Rep.  200, 
Shiley  v.  Watts;  Sug.  on  Yen.  474;  Gilb.  on  Ev.  33.  Again,  a  term 
for  years,  may  by  the  sheriff  under  an  elegit,  either  be  extended, 
that  is,  he  may  deliver  a  moiety  thereof  to  the  plaintiff  under  the 
words  in  the  statute,  medietatem  terra  suw,  2  Inst.  396;  8  Co.  171; 
Gilb.  on  Ev.  35;  or  may  sell  the  whole  term  to  the  plaintiff  as  part 
of  the  personal,  at  a  gross  price  approved  by  the  jury.  A  term  for 
years  may  also  be  sold  at  common  law  under  a,  fieri  facias.  Now, 
this  is  a  case  which  will  most  conclusively  shew  whether  the 
execution  used  has  any  effect  upon  the  judgment,  or  creates, 
or  in  any  manner  affects,  the  lien.  Here  whether  the  elegit 
or  tha  fieri  facias  be  issued;  whether  the  term  be  extended  or  sold, 
the  property  is  only  bound  from  the  time  execution  is  awarded; 
Sug.  on  Yen.  494;  8  Co.  171 ;  3  Atk.  Rep.  200.  This  was  the  com- 
mon law  with  regard  to  the  fieri  facias,  and  when  tiie  term  was 


porter's   lessee   v.    COCKE  601 

made  extendible  under  the  elegit,  the  change  of  process  effected  no 
change  in  the  Uen;  the  fieri  facias  bound  goods  and  chattels  from 
its  test,  because  they  were  goods  and  chattels,  and  on  account  of 
the  nature  of  the  property,  and  for  this  reason  alone  was  it,  that  the 
elegit  was  held  to  bind  goods  only  from  the  test,  and  upon  this 
reasoning  was  it  held  that  a  lease-hold  was  not  bound  by  the  judg- 
ment, because  it  was  a  chattel,  because  it  was  goods;  Sug.  on 
Ven.  494,  5;  and  if  the  elegit  binds  to  precisely  the  same  extent  with 
the  fieri  facias,  when  levied  on  personal  estate,  can  any  reason  be 
given  why  the  fieri  facias  when  levied  on  personal  estate,  should 
destroy  the  lien  of  the  judgment  when  made  to  operate  on  freehold 
estate  ?  I  believe  no  reason  founded  on  authority  or  justice  can  be 
rendered  why  it  should  have  such  effect,  and  by  all  just  analogy 
when  the  fieri  facias  is  levied  on  freehold  estate,  then  it  should,  as 
the  elegit  does,  conform  itself  in  its  operation  to  the  nature  of  the 
property  brought  within  its  reach,  2  Bac.  Ab.  700;  2  Roll.  472; 
and  should  truly  execute  the  judgment  to  such  extent  as  it  operates 
upon  the  rights  and  property  of  the  respective  parties  to  it.  There- 
fore I  conclude  as  the  writ  of  execution  employed  has,  in  the  cases 
adduced,  had  no  effect  either  to  extend  or  limit  the  binding  force 
of  the  judgment,  that  when  the  act  of  5  Geo.  2,  ch.  7,  sec.  4,  gave  to 
the  creditor  the  right  to  sell  the  debtor's  and  under  the  fieri  facias 
instead  of  extending  it  under  the  elegit,  it  was  not  intended  by  a 
change  of  process  to  change  and  limit  the  effect  of  the  judgment. 

The  whole  statute  is  made  to  extend  the  rights  of  the  creditor, 
to  secure  to  hun  the  power  of  collecting  his  debt;  and  it  would  be 
singular,  indeed,  if,  at  the  time  the  legislature  gives  to  the  creditor 
the  benefit  of  the  fieri  facias  upon  lands,  it  intended  to  annex  a 
condition  to  its  use  which  might,  and  in  many  cases  would  alto- 
gether defeat  the  collection  of  his  debt. 

The  uniform  course  of  judicial  dicta,  coming  from  judges  of  con- 
siderable learning  and  experience,  although  not  amounting  to 
authority,  are  yet  entitled  to  much  respect  and  tend  to  give  greater 
confidence  in  the  opinion  now  expressed.  By  the  act  of  179&,  ch. 
14,  sec.  2,  the  legislature  of  this  state  have  recognised  the  binding 
force  of  a  judgment  on  lands,  and  have  so  limited  this  lien  as  to 
prevent  any  serious  injury  to  purchasers  bona  fide  from  the  judg- 
ment debtor.' 

^  For  the  effect  of  a  judgment  as  a  lien  on  land  of  the  judgment  debtor,  see 
1  Black,  Judgments,  2d  ed.,  Chap.  XVI;  2  Freeman,  Judgments,  4th  ed., 
Chap.  XIV. 

In  England  by  the  statute  27  and  28  Vict.  c.  112  no  judgment  affects  land 


602  the  enforcement  of  judgments 

California  Code  of  Civil  Procedure. 

Sec.  671.  Immediately  after  filing  the  judgment-roll,  the  clerk 
must  make  the  proper  entries  of  the  judgment,  under  appropriate 
heads,  in  the  docket  kept  by  hun;  and  from  the  time  the  judgment 
is  docketed  it  becomes  a  lien  upon  all  the  real  property  of  the  judg- 
ment debtor  not  exempt  from  execution  in  the  county,  owned  by 
him  at  the  time,  or  which  he  may  thereafter  acquire,  until  the  lien 
ceases.  The  lien  continues  for  five  years,  unless  the  enforcement  of 
the  judgment  be  stayed  on  appeal  by  the  execution  of  a  sufficient 
undertaking  as  provided  in  this  code,  in  which  case  the  lien  of  the 
judgment  and  any  lien  by  virtue  of  an  attachment  that  has  been 
issued  and  levied  in  the  action  ceases. 

Sec.  674.  The  transcript  of  the  original  docket  of  any  judg- 
ment, the  enforcement  of  which  has  not  been  stayed  on  appeal, 
certified  by  the  clerk,  may  be  filed  with  the  recorder  of  any  other 
county,  and  from  such  filing  the  judgment  becomes  a  lien  upon  all 
the  real  property  of  the  judgment  debtor  not  exempt  from  exe- 
cution in  such  county,  owned  by  him  at  the  time,  or  which  he 
may  afterward,  and  before  the  lien  expires,  acquire.  The  lien  con- 
tinues for  two  years  unless  the  judgment  is  previously  satisfied  or 
the  lien  otherwise  discharged. 


EAVES  V.   GARNER  et  al 

Supreme  Court  of  Georgia.     1900. 

[Reported  111  Georgia,  273.] 

Fish,  J.  C.  C.  Eaves  brought  his  action  against  J.  F.  Garner, 
J.  G.  Weaver,  and  B.  F.  Morgan,  for  damages  which  he  alleged  he 
had  sustained  by  reason  of  the  defendants  having  entered  upon  his 
land  and  cut  and  carried  away  certain  timber.  Upon  the  trial,  to 
prove  his  title  to  the  land,  plaintiff  offered  in  evidence  a  sheriff's 
deed  thereto,  made  in  pursuance  of  a  sale  under  an  execution  issued 
from  a  justice's  court.  He  also  offered  in  evidence  a  copy  of  such 
execution,  with  the  entries  thereon,  the  original  having  been  lost. 
The  following  entry  appeared  on  the  copy  fi.  fa.:  "  I  know  of  no 
personal  property  in  the  possession  of  the  defendant,  on  which  to 

so  as  to  be  a  charge  on  it  until  it  has  been  actually  delivered  in  execution  by 
the  sheriff,  and  the  writ  is  required  to  be  registered.  See  Williams,  Real 
Property,  22d  ed.,  pp.  271-281.  —  Ed. 


PENHALLOW   V.    DWIGHT  603 

levy  this  ji.  fa.  This  14th  day  of  February,  1848.  James  S. 
Trible,  Cons."  The  court  excluded  the  copy  fi.  fa.,  and  the 
plaintiff  excepted. 

Section  4167  of  the  Civil  Code,  which  is  a  codification  of  the  act  of 
1811,  provides  that  "  No  constable  shall  levy  on  any  land  unless 
there  is  no  personal  property  to  be  found  sufficient  to  satisfy  the 
debt,  which  fact  must  appear  by  an  entry  on  the  execution,  to  be 
levied  by  a  constable  of  the  county  where  such  execution  was 
issued,  or  where  the  property  to  be  levied  upon  may  be  found." 
The  entry  of  the  constable  upon  the^.  fa.  in  this  case  did  not  com- 
ply with  this  section  of  the  code.  Instead  of  an  entry  of  no  per- 
sonal property  to  be  found,  which  seems  to  imply  that  the  constable 
should  make  some  search  for  such  property,  he  made  an  entry 
that  he  knew  of  no  personal  property  in  the  possession  of  the  de- 
fendant on  which  to  levy  the  fi.  fa.  The  defendant  may  have 
owned  sufficient  personalty  to  satisfy  the  execution,  which  at  the 
time  of  this  entry  was  in  possession  of  some  one  else,  and  the  con- 
stable may  have  known  this  fact,  and  yet  his  entry  would  be  true. 
There  was  no  error,  therefore,  in  sustaining  the  objection  to  the 
introduction  of  the/f.  fa.  in  evidence.  There  seems  to  have  been 
no  objection  to  sheriff's  deed  going  in  evidence,  but,  as  the  plaintiff 
offered  no  other  evidence,  the  court  did  not  err  in  granting  a 
nonsuit.  Judgment  affirmed.    All  the  Justices  concurring.^ 


PENHALLOW  v.   DWIGHT. 

Supreme  Judicial  Court  of  Massachusetts.     1810. 

[Reported  7  Massachusetts,  34.] 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  and  cut- 
ting down  and  carrying  away  his  corn  there  growdng. 

The  parties  submitted  the  cause  to  the  determination  of  the 
Court  upon  an  agreed  statement  of  facts.  The  defendant,  at  the 
time  when,  &c.,  was  a  constable  of  Belchertown,  in  which  the  locus 
in  quo  was  situated,  and  he  entered  the  close,  and  cut  and  carried 
away  the  plaintiff's  corn  thereon  growing,  and  then  fully  ripe  and 
fit  to  be  gathered;  claiming  authority  so  to  do,  by  virtue  of  an 
execution  to  him  directed,  then  in  full  force,  and  issued  in  due 
form  of  law,  upon  a  judgment  of  the  Court  of  Common  Pleas,  for 

1  See  2  Freeman,  Executions,  3d  ed.,  sec.  279;  8  Encyc.  of  PI.  &Pr.  514.  — 
Ed. 


604  THE   ENFORCEMENT    OF   JUDGMENTS 

the  county  of  Hampshire,  against  the  plaintiff,  and  in  favor  of  one 
Eldad  Parsons.  The  said  corn  being  sold  by  the  defendant  at 
publick  auction,  according  to  law,  produced  the  sum  of  22  dollars, 
49  cents,  which  sum,  after  deducting  his  fees,  and  the  expenses  of 
gathering  the  corn,  the  defendant  endorsed  on  the  said  execution. 
If  the  court  should  be  of  opinion,  that  the  defendant  had  a  right, 
by  virtue  of  the  authority  aforesaid,  to  enter  the  said  close,  and 
cut  and  carry  away  the  plaintiff's  corn,  in  manner  and  for  the 
cause  aforesaid,  it  was  agreed  that  judgment  should  be  rendered 
for  the  defendant  for  his  costs;  othrewise  for  the  plaintiff,  for  25 
dollars  damage,  with  his  costs. 

Curia.  As  the  defendant  had  the  right,  and  indeed  was  obliged 
by  the  duty  of  his  office,  to  enter  the  close  of  the  plaintiff,  and  to 
seize  any  personal  property  of  the  plaintiff,  whereby  he  might  sat- 
isfy the  execution  he  then  held  against  the  plaintiff;  the  only  ques- 
tion is,  whether  corn,  then  in  a  proper  state  to  be  gathered,  but  found 
standing,  might  lawfully  be  cut  down  and  disposed  of,  to  raise  the 
money  due  upon  the  execution.  And  we  have  no  doubt  that  corn, 
or  any  other  product  of  the  soil,  raised  annually  by  labor  and  culti- 
vation, is  personal  estate;  and  would  go  to  the  executor,  and  not  to 
the  heir,  on  the  decease  of  the  proprietor.  It  is  therefore  liable  to 
be  seized  on  execution,  and  may  be  sold  as  other  personal  estate. 

An  entry  for  the  purpose  of  taking  unripe  corn,  or  other  produce 
which  would  yield  nothing,  but  in  fact  be  wasted  and  destroyed,  by 
the  very  act  of  severing  it  from  the  soil,  would  not  be  protected  by 
this  decision. 

Let  the  defendant  have  judgment  for  his  costs.^ 


ALBRECHT  and  others  v.   LONG  and  others. 
Supreme  Court  of  Minnesota.     1878. 

[Reported  25  Minnesota,  163.] 

Gilfillan,  C.  J.^  The  defendant  Long  was  sheriff  of  the  County 
of  Waseca,  and  Stevenson  was  his  deputy;  executions  issued 
against  the  property  of  Sherwins  were  delivered  as  follows :  One  in 
favor  of  Charles  Shedd,  to  the  sheriff  himself,  at  10.30  o'clock  p.m. 

'  Compare  Davidson  v.  Waldon,  31  111.  120;  Cheshire  Nat.  Bank  v.  Jewett, 
119  Mass.  241. 

A  leascihold  interest  in  land  may  \)G  levied  upon  and  sold  upon  a.  fieri  facias. 
Dalzeli  V.  Lynch,  4  W.  &  S.  (Pa.),  255.  —  Eo. 

^  Only  the  opinion  of  the  court  is  liere  given.  —  Ed. 


ALBRECHT   V.    LONG  605 

of  March  19,  1877;  one  in  favor  of  Chancy  Hardin  et  al.,  and 
another  in  favor  of  J.  S.  Ricker  et  al.,  to  the  sheriff  in  person,  at 
2  o'clock  A.M.  of  March  20;  and  one  in  favor  of  these  plaintiffs,  to 
the  deputy,  at  6  o'clock  a.m.  of  the  same  day.  The  deputy  levied 
this  last  execution  at  half-past  six  a.m.  of  the  same  day,  and  took 
possession  of  the  property.  About  half  an  hour  thereafter,  the 
sheriff  levied  the  three  executions  delivered  to  him  in  person,  upon 
the  same  property,  and,  upon  his  request,  the  deputy  delivered  to 
him  the  plaintiff's  execution,  and  the  possession  of  the  property. 
The  sheriff  advertised  the  property  for  sale  under  several  execu- 
tions, not  naming  either  of  them,  and  sold  the  property,  and 
applied  the  proceeds,  after  deducting  his  fees,  to  the  payment  in 
full  of  the  Shedd  execution,  and  the  remainder  upon  the  execution 
of  Hardin  et  al.,  and  returned  the  plaintiff's  wholly  unsatisfied, 
whereupon  plaintiffs  bring  suit  against  the  sheriff"  and  the  sureties 
in  his  official  bond. 

The  question  presented  is,  whether  the  levy  of  an  execution 
gives  the  execution  creditor  a  lien  upon  the  property,  which  entitles 
him  to  priority  over  other  executions  in  the  hands  of  the  same 
officer  against  the  same  debtor,  delivered  to  the  officer  before,  but 
not  levied  till  after,  his  ?  For  these  executions  are  all  to  be  taken 
as  delivered  to  the  sheriff'.  The  deputy  is  not  an  officer  having  a 
separate  official  existence  from  that  of  the  sheriff.  He  is  an  officer 
of  the  sheriff's,  whose  powers  and  duties,  so  far  as  they  affect  the 
public,  it  is  true,  are  defined  by  law.  But  he  holds  the  office  at  the 
pleasure  of  the  sheriff,  is  appointed  and  removable  by  him,  and 
civilly  responsible  to  him,  and  not  to  the  parties  whose  writs  come 
into  his  hands.  He  must  act  in  the  name  of  the  sheriff,  and  not  in 
his  own  name.  All  his  acts  are,  in  law,  the  acts  of  the  sheriff;  and 
the  responsibility,  civilly,  for  such  acts  done  within  his  authority,  is 
that  of  the  sheriff.  Our  statutes  do  not,  as  do  the  statutes  of 
some  of  the  states,  alter  m  any  way  the  status  of  the  deputy. 

It  is  the  duty  of  the  sheriff,  upon  a  writ  coming  into  his  hands, 
to  use  due  diligence  in  the  execution  of  it.  It  attaches  to  the  writs 
as  they  come  into  his  hands,  and  it  follows  that  it  is  his  duty  to 
execute  first  those  which  are  first  delivered  to  him.  Upon  several 
executions  in  favor  of  different  creditors  against  the  same  debtor, 
it  is  his  duty  to  the  creditor  in  that  first  delivered,  to  execute  that 
first;  and  to  the  creditor  in  the  second,  to  execute  that  second;  and 
so  through  them  all.  This  is  the  duty  he  owes  to  the  several 
creditors.  But  the  rights  of  the  creditors,  as  against  each  other, 
are  not  necessarily  controlled  by  it. 


606  THE   ENFORCEMENT   OF  JUDGMENTS 

At  the  common  law,  an  execution  bound  the  goods  of  the  debtor 
from  the  tune  of  the  teste,  even  though  they  were  subsequently 
transferred  to  a  bona-fide  purchaser.  The  statute  29  Charles  II.,  c. 
3,  §  16,  provided  that  the  execution  "  shall  bind  the  property  of  the 
goods  against  which  such  writ  of  execution  is  sued  out,  but  from  the 
time  that  such  writ  shall  be  delivered  to  the  sheriff,  under-sheriff  or 
coroner,  to  be  executed."  Under  the  common-law  rule,  the  execu- 
tion operated  as  a  lien  in  favor  of  the  creditor  for  the  satisfaction  of 
his  debt,  from  the  time  of  the  teste,  and,  under  the  statute,  it 
operated  as  such  lien  from  the  time  of  its  delivery  to  be  executed. 
And  the  latter  would  continue  to  be  the  rule,  were  it  not  for  the 
provisions  of  the  statute  of  this  state.  Gen.  St.  c.  66,  §  269,  enacts 
that  "until  a  levy,  property  not  subject  to  the  lien  of  the  judgment 
is  not  affected  by  the  execution."  So  that  the  creditor  acquires  a 
lien  on  the  property,  by  virtue  of  his  execution,  only  from  the  levy. 
The  property  is  not  affected  by  the  teste,  nor  the  delivery  to  the 
sheriff.  The  levy  fixes  the  rights  of  the  creditor  as  to  the  specific 
property.  It  is  argued  that  the  statute  29  Charles  II.,  and  the 
General  Statutes  were  passed  only  for  the  protection  of  bona-fide 
purchasers,  and  therefore  do  not  affect  the  rights  of  execution 
creditors  as  against  each  other.  If  this  were  so,  their  rights  would 
be  controlled  by  the  common-law  rule,  that  the  execution  binds 
the  goods  from  its  teste,  and  the  execution  last  delivered  and  levied 
might  take  precedence  of  all  the  others,  because  of  the  priority  in 
its  teste.  We  do  not  think  the  statute  was  intended  to  operate 
only  as  between  the  execution  creditor  and  a  bona-fide  purchaser,  as 
claimed,  but  it  was  intended  to  define  absolutely,  as  its  language 
indicates,  the  rights  of  the  creditor  as  to  the  specific  property,  and 
as  between  him  and  all  others. 

The  execution  first  levied,  then,  has  the  first  lien  on  the  property, 
though  there  may  be  others  in  the  hands  of  the  sheriff,  which  were 
delivered  to  him  before  the  one  levied.  Russell  v.  Lawton,  14 
Wis.  202;  Knox  v.  Webster,  18  Wis.  406.  The  creditors  in  execu- 
tions afterwards  levied  cannot  claim  to  be  paid  out  of  the  property, 
until  the  one  first  levied  is  satisfied.  This  would  be  so  in  a  contest 
between  the  creditors,  and  it  must  be  so  in  a  dispute  between  the 
creditor  having  the  first  lien  by  levy,  and  the  sheriff.  The  remedy 
of  the  creditor  in  the  execution  first  delivered  is  against  the  sheriff. 
If  the  latter,  through  negligence,  omit  to  levy  the  first  execution 
till  a  second  has  been  levied,  and  loss  thereby  accrues  to  the  first 
execution  creditor,  an  action  will  undoubtedly  lie. 


WISE    V.    DARBY  607 

It  does  not  follow,  however,  from  the  rule  of  law  that  a  sheriff 
and  his  deputies  are  regarded  as  one  officer,  that  where  several 
executions  against  the  same  debtor  are  placed,  some  in  the  hands  of 
the  sheriff  in  person,  and  others  in  the  hands  of  his  deputy,  and  in 
consequence  thereof,  and  witliout  actual  negligence  of  the  sheriff  or 
deputy  holding  the  execution  first  delivered,  a  subsequent  execu- 
tion is  first  levied,  that  the  sheriff  is  liable  to  the  creditor  in  the 
first  execution.  When  it  comes  to  a  question  of  diligence,  the  law 
recognizes  the  fact  that  the  sheriff  and  his  deputy  are  different 
persons,  though  in  theory  one  officer.  And  as  it  does  not  require 
impossibilities,  it  regards  the  question  of  diligence  in  view  of  that 
fact,  and  of  what  may  naturally  happen  in  consequence  of  it. 
Russell  V.  Lawton,  14  Wis.  202;  Whitney  v.  Butterfield,  13  Cal. 
335.  Order  reversed,  and  new  trial  ordered.^ 


WISE  V.   DARBY,  Administrator,  &c. 
Supreme  Court  of  Missouri.     1845. 
[Reported  9  Missouri,  130.] 

Napton,  J.  This  was  a  motion  made  by  Darby,  the  defendant 
in  error,  in  the  court  of  common  pleas  of  St.  Louis  county,  asking 
that  court  to  instruct  the  sheriff  to  sell  certain  property  levied  on  by 
virtue  of  an  execution  in  favor  of  said  Darby  against  M.  &  F. 
Steigers,  and  to  apply  the  proceeds  to  the  satisfaction  of  that 
execution. 

The  motion  was  resisted  by  the  plaintiffs  in  error,  who  claimed 
the  property,  by  virtue  of  executions  in  their  favor,  issued  anterior 
to  the  executions  in  favor  of  the  plaintiff  in  error,  and  first  placed  in 
the  hands  of  the  sheriff.  Affidavits  in  support  of  the  motion,  and 
counter  affidavits  in  behalf  of  plaintiff's  in  error,  were  read  on  the 
hearing  of  the  motion.  The  court  sustained  the  motion,  and  di- 
rected the  proceeds  of  the  sale  to  be  paid  over  to  the  defendant  in 
error. 

It  appears  from  the  affidavits,  and  from  the  returns  made  upon 
each  of  the  executions,  that  the  execution  in  favor  of  Darby,  adm'r 
of  Gross,  against  M.  &  F.  Steigers,  issued  on  the  24th  March,  1843, 
for  the  sum  of  about  eight  hundred  dollars,  and  was  placed  in  the 

'  In  many  jurisdictions  section  16of  the  Statute  of  Frauds  is  law.  2  Freeman 
Executions,  3d  ed.,  sec.  200.  In  many  jurisdictions,  however,  as  in  Mirmesota, 
the  execution  Hen  arises  from  the  actual  levy.     Ibid.,  sec.  201.  —  Ed. 


608  THE   ENFORCEMENT   OF   JUDGMENTS 

hands  of  the  sheriff  on  the  same  day.  At  that  time,  the  sheriff  had 
in  his  hands  two  executions  against  the  same  parties,  one  in  favor  of 
S.  Wise,  and  the  other  in  favor  of  P.  Wise,  amounting  to  about 
seven  hundred  doUars;  but  annexed  to  each  of  the  last  mentioned 
executions,  were  written  instructions  by  the  plaintiff's  attorney 
directing  the  sheriff  not  to  levy,  until  ordered  by  said  attorney. 
The  defendant  in  error  directed  the  sheriff  to  levy  his  execution 
forthwith,  and  the  sheriff  did  so.  On  the  evening  of  the  same  day, 
and  before  the  inventory  of  the  property  levied  on  under  the  exe- 
cution of  Darby  was  completed,  the  attorney  of  the  plaintiff  in 
error  went  to  the  Sheriff,  and  tore  off  the  written  instructions 
appended  to  the  executions,  and  directed  an  immediate  levy  on  the 
same  property.  The  Sheriff  levied,  made  sale  and  returned  the 
facts  especially,  bringing  the  money  into  court,  to  be  paid  over  as 
the  court  should  direct.  .  .  . 

The  main  question  for  determination  is:  where  an  execution  is 
delivered  to  a  sheriff,  and  the  plaintiff  or  his  attorney  directs  the 
officer  not  to  levy,  and  a  second  execution  is  placed  in  the  hands  of 
the  same  officer,  which  is  first  levied,  and  the  goods  sold  under  both 
writs,  which  shall  be  first  satisfied  ? 

Though  the  writ  of  execution  binds  the  goods  from  the  time  it  is 
delivered  into  the  hands  of  the  officer,  the  property  of  the  defend- 
ant in  the  execution  is  not  divested  until  he  levy.  As  a  conse- 
quence of  this  principle  it  has  been  held,  that  where  two  executions 
are  delivered  to  the  sheriff,  and  he  levies  and  sehs  under  the  one  last 
delivered  to  him,  such  sale  passes  a  good  title  to  the  purchaser, 
and  the  only  remedy  of  the  plaintiff'  in  the  first  execution  is  against 
the  officer.  Smallcomb  v.  Buckingham,  1  Salk.  321.  And  Lor^ 
Holt  intunated  in  this  case,  that  if  the  person  who  sued  out  the 
first  writ  concealed  it  in  his  hand,  the  sheriff  may  rightly  make 
execution  on  another  writ,  which  bears  the  last  test,  but  came  first 
to  his  hands.  In  such  case  the  sheriff  would  not  be  responsible. 
This  was  before  the  Statute  providing  that  writs  should  bind  only 
from  the  time  of  their  delivery.  But  where  two  writs  of  fieri 
facias  were  delivered  to  the  sheriff  on  different  days,  and  the  levy- 
was  made  under  the  second  execution,  but  no  sale  actually  made, 
the  sheriff"  was  held  justified  in  paying  over  the  proceeds  to  satisfy 
the  first  execution.     Hutchinson  v.  Johnson,  1  Term  R.  731. 

In  the  case  of  Payne  v.  Drew,  4  East  523,  a  writ  of  sequestration 
issued  from  the  court  of  chancery  in  June,  1800;  eighteen  months 
afterwards,  and  before  the  sequestrators  had  execmted  the  writ,  a 
writ  of  execution  from  the  court  of  common  pleas  came  to  the 


WISE    V.    DARBY  609 

sheriff's  hands,  and  it  was  held  that  the  sheriff  was  not  justified  in 
returning  nulla  bona  to  the  execution.  Lord  Ellenborough  said, 
that  where  there  were  several  authorities  equally  competent  to 
bind  the  goods  of  a  party  when  executed  by  the  proper  oflEicer,  they 
shall  be  considered  as  effectually,  and  for  all  purposes  bound  by 
that  authority,  which  first  actually  attaches  upon  them  in  point  of 
execution,  and  under  which  an  execution  shall  have  been  first 
executed. 

In  the  case  now  before  the  court,  the  execution  in  favor  of  the 
plaintiffs  in  error,  first  came  to  hand,  and  the  execution  of  the 
defendant  in  error  was  first  levied;  and  according  to  the  case  of 
Hutchinson  v.  Johnson,  if  the  written  instructions  are  thrown  out 
of  consideration  the  sheriff,  notwithstanding  his  having  levied 
first  under  the  execution  of  defendant  in  error,  should  pay  the 
proceeds  to  the  plaintiffs  in  the  first  executions.  The  question 
then  arises,  did  the  lien  of  the  first  execution  commence  from  the 
time  of  their  delivery,  or  was  that  lien  destroyed,  or'suspended  by 
the  acts  of  the  plaintiffs  in  error  ? 

In  England,  as  well  as  in  this  country,  the  doctrine  is  firmly 
established,  that  where  the  creditor  gives  instructions  to  the  officer, 
after  a  levy,  to  delay,  or  not  to  proceed  on  the  execution,  such 
execution  is  held  to  be  fraudulent,  and  void  as  against  a  subse- 
quent execution.  Whipple  v.  Foot,  2  J.  R.  416;  Storm  v.  Woods, 
11  J.  R.  110;  Rew  v.  Barber,  3  Cow.  279;  Edwards  v.  Harben,  2 
Term  R.  596,  7  Mod.  37;  Russell  v.  Gibbs,  5  Cow.  394. 

This  doctrine  results  from  the  principle,  that  the  levy  divests  the 
property  from  the  defendant,  and  that  to  leave  such  property  in  the 
possession  of  the  defendant,  by  the  connivance,  or  at  the  request  of 
the  plaintiff  in  the  execution,  would  be  fraud  against  subsequent 
executions.  Would  not  the  objections  be  as  great  to  the  conduct 
of  a  plaintiff,  who  when  he  delivers  his  writ,  accompanies  that  deliv- 
ery with  a  declaration  that  he  does  not  desire  it  to  be  executed  ? 
The  lien  of  an  execution,  is  merely  the  right  to  have  the  property 
of  the  defendant  subjected  to  the  payment  of  that  execution. 
This  lien  attaches  by  the  delivery  of  the  writ.  But  a  lien  which 
caimot  be  enforced,  would  seem  to  be  a  contradiction  in  terms; 
and  if,  as  we  have  seen  in  the  case  of  Smallcomb  v.  Buckingham, 
the  judge  was  influenced  in  his  deteniiination  by  the  fact  that  the 
plaintiffs  in  the  first  writ  had  told  the  sheriff  he  was  in  no  haste 
(1  Salk.  320),  much  stronger  would  be  the  inference  against  the 
vitality  of  a  lien,  when  the  party  interested  actively  interferes,  and 
directs  the  officer  not  to  levy.     Is  it  not  obvious  that  to  uphold 


GIO  THE    ENFORCEMENT   OF   JUDGMENTS 

such  a  lien,  would  be  to  open  a  door  to  fraud,  and  enable  plaintififs 
by  collusion  to  protect  the  goods  of  their  debtors  from  other  exe- 
cutions ? 

If  the  property  of  the  debtor  is  held  by  the  first  execution,  not- 
withstanding the  officer  is  directed  not  to  levy  it,  and  that  execu- 
tion is  sufficient  to  cover  all  the  property,  the  other  creditors 
cannot  sue  out  executions,  so  as  to  be  available,  and  the  property 
of  the  debtor  is  thus  protected.  Tims  all  the  evils  would  arise,  to 
suppress  which,  the  courts  established  the  rule,  that  the  creditor 
should  not  interfere  after  a  levy,  and  still  retain  his  priority. 

Judgment  affirmed.^ 


PEASE  V.   PRICE. 
Supreme  Court  of  Iowa.     1897. 

[Reported  101  Iowa,  57.] 

This  is  an  action  for  judgment  on  three  promissory  notes,  and  on 
an  account.  An  attachment  was  issued  in  the  action,  and  levied 
upon  certain  farming  implements  and  tools,  as  the  property  of  the 
defendant.  Defendant  moved  to  discharge  the  attached  property, 
as  exempt  to  him  as  a  farmer,  which  motion  was  sustained,  and 
from  the  order  discharging  said  property  the  plaintiff  appeals. 

A  ffirmed. 

Given,  J.  Defendant  states,  as  the  grounds  of  his  motion,  that 
he  is  a  married  man,  the  head  of  a  family,  a  resident  of  Clayton 
county,  Iowa;  that  his  business  is  that  of  a  farmer,  and  that  the 
property  levied  upon  is  the  same  that  he  has  heretofore  used  in  his 
business  of  farming,  and  which  he  purposes,  expects,  and  intends 
to  continue  to  use  in  and  about  the  business  of  farming;  and  that 
it  is  all  the  farm  implements  of  which  he  was  possessed  at  the  time 
the  same  were  seized.  There  is  no  dispute  but  that  if,  at  the  time 
of  the  levy,  January  18,  1895,  the  defendant  was  a  farmer,  the 
property  levied  upon  was  exempt  to  him,  under  section  3072  of  the 
Code.  The  evidence  shows,  without  conflict,  that  defendant  was 
engaged  in  the  business  of  farming,  and  used  the  implements  in 
question  in  that  business,  up  to  and  for  some  years  prior  to  the 
first  of  March,  1894,  and  that,  having  no  farm  of  his  own,  he  rented 
from  others.  In  March,  1894,  he  and  his  family  moved  into  the 
town  of  Strawberry  Point,  where  they  continued  to  reside  at  the 

1  Gilmore  v.  Davis,  84  111.  487,  accord.  —  Ed. 


BROADSTREET   V.    CLARK  611 

time  of  these  proceedings.  During  that  time  defendant  was 
engaged,  to  some  extent,  as  a  barkeeper  in  a  saloon,  and  made 
some  efforts  to  secure  a  place  in  which  to  start  a  saloon  of  his  own. 
He  testifies  that  the  only  reason  why  he  was  not  using  said  imple- 
ments as  a  farmer  was  that  he  had  not  been  able  to  rent  a  farm 
suitable  for  the  amount  of  help  that  he  had  in  his  own  family.  He 
says,  "  I  have  never  abandoned  the  business  of  farming,  but,  upon 
the  contrary,  have  always  intended,  and  do  now  intend,  to  continue 
to  follow  and  conduct  the  business  of  farming."  The  fact  that  he 
sought  other  employment  during  the  time  that  he  was  unable  to 
procure  a  farm,  is  not  in  conflict  with  this  statement  as  to  his 
intention.  It  appears  that  in  December,  1894,  the  defendant 
advertised  some  of  these  articles  for  sale,  but  that  act  does  not 
show  that  he  did  not  intend  to  continue  in  the  business  of  farming. 
It  also  appears  that  defendant  said  on  one  occasion  that  he  had 
sold  part  of  said  implements  to  his  son-in-law,  but  it  does  not 
appear  that  the  sale,  if  ever  made,  was  consummated.  The  articles 
were  taken  as  the  property  of  the  defendant,  and  from  his  posses- 
sion. Under  the  ruling  announced  in  Hickman  v.  Cruise,  72  Iowa, 
528  (34  N.  W.  Rep.  316),  it  is  not  necessary  that  the  defendant 
should  have  actually  engaged  in  farming  at  the  time  the  property 
was  taken.  In  that  case,  as  in  this,  the  party  claiming  the  exemption 
had  been  engaged  in  farming  as  a  tenant,  but  was  not  so  engaged, 
and  had  not  leased  a  farm,  for  that  year.  It  was  held,  however, 
that  he  was  a  farmer,  within  the  meaning  of  the  statute,  and  the 
court  below  properly  so  held  in  this  case.  Affirmed. 


BROADSTREET  v.  CLARK,  Defendant  and  THE  CHICAGO, 
MILWAUKEE  &  ST.  PAUL  R'Y  COMPANY,  Garnishee. 

Supreme  Court  of  Iowa.     1885. 
[Reported  65  Iowa,  670.] 

The  defendant  railroad  company  was  garnished  as  the  supposed 
debtor  of  its  co-defendant.  Judgment  was  rendered  against  both 
defendants,  and  they  appeal. 

See  VERS,  J.  Upon  being  garnished,  the  railroad  company 
answered  that  it  was  indebted  to  Clark,  the  judgment  debtor, 
who  was  one  of  its  employes  in  Dakota  territory,  and  that  he  was  a 
married  man,  and  the  head  of  a  familj^,  and  a  resident  of  said  terri- 
tory when  the  work  and  labor  were  performed  for  which  the  in- 


612  -      THE    ENFORCEMENT    OF   JUDGMENTS 

debtedness  was  incurred,  and  that  the  same  had  been  earned  within 
ninety  days  prior  to  the  garnishment;  that  under  the  laws  of  said 
territory  said  earnings  were  exempt  from  execution.  Clark,  the 
judgment  debtor,  intervened  in  the  garnishment  proceeding,  and 
in  substance  pleaded  the  same  facts  as  above  stated,  and  asked  that 
the  garnishee  be  discharged.  Upon  motion  of  the  plaintiff,  judg- 
ment on  the  answer  of  the  garnishee  and  petition  of  intervention 
was  rendered  for  the  plaintiff,  and  we  are  required  to  determine 
whether  the  court  erred  in  the  rendition  of  such  judgment. 

We  regard  it  as  the  settled  rule  in  this  state  that  the  exemption 
laws  of  another  state  or  territory  cannot  be  pleaded  or  relied  on  as  a 
defense  by  either  the  garnishee  or  judgment  debtor.  Newell  v. 
Hayden,  8  Iowa,  140;  Leiber  v.  Union  Pac.  R'y  Co.,  49  Iowa,  688; 
Mooney  v.  Union  Pac.  R'y  Co.,  60  Iowa,  346.  See,  also,  Bur- 
lington &  M.  R.  R'y  Co.  u.  Thompson,  31  Kan.,  180,  and  authorities 
there  cited.  Affirmed} 


SHINN  V.   MACPHERSON  et  Ux. 

Supreme  Court  of  California.     1881. 

[Reported  58  California,  596.] 

Ross,  J.  The  plaintiff  and  the  defendant,  John  Macpherson, 
formed  a  copartnership  June  2d,  1879,  which  continued  to  Septem- 
ber 24th,  1880,  when  it  was  dissolved  by  mutual  consent.  During 
this  time  John  Macpherson  was  the  owner  of  a  certain  house  and 
lot,  where  he  resided  with  his  wife,  the  defendant  Esther  Suther- 
land Macpherson,  and  on  which  he  had  i:»reviously,  to  ^vit,  May 
19th,  1877,  executed  to  one  Borel  a  mortgage  to  secure  the  payment 
to  him  of  the  sum  of  one  thousand  seven  hundred  dollars  in  gold 
coin.  A  few  days  previous  to  the  dissolution  of  the  partnership 
between  Shinn  and  Macpherson,  that  is  to  say,  on  the  16th  of 
September,  1880,  M^'s.  Macpherson  filed  a  declaration  of  her 
intention  to  claim  the  house  and  lot  as  a  homestead,  and  the  next 
day  —  September  17th  —  John  Macpherson  secretly  and  sur- 
reptitiously drew  from  the  assets  of  the  firm  of  Macpherson  & 
Shinn  the  sum  of  two  thousand  four  hundred  dollars  (there  being 
nothing  at  the  time  due  him  from  the  firm  or  from  Shinn),  out  of 

1  But  see  Drake  v.  Lake  Shore  &  M.  S.  R.  R.  Co.,  69  Mich.  168,  37  N.  W. 
70,  13  Am.  St.  Rep.  282.  Compare  Mitchell  v.  Shook,  72  111.  492;  Mumper  v. 
Wilson,  72  la.  163,  33  N.  W.  449;  Chicago,  B.  &  Q.  R.  Co.  v.  Moore,  31  Neb. 
629,  48  N.  W.  475.    See  Drake,  Attachment,  7th  ed.,  4806.  —  Ed. 


SHINN    V.    IVLICPHERSON  613 

which  he,  on  the  27th  da}^  of  September  follo\\ang,  paid  off  and  dis- 
charged the  mortgage  lien  held  by  Borel  on  the  premises.  The 
money  so  drawTi  and  disposed  of  by  Macpherson  was,  at  the  time 
it  was  drawn  and  disposed  of,  and  still  is,  due  to  creditors  of  Mac- 
pherson &  Shinn.  Macpherson  having  refused  to  restore  or  in  any 
way  to  account  for  the  said  sum  or  any  part  of  it,  this  action  was 
brought  by  Shinn  for  an  account,  etc.,  and  to  obtain  a  decree 
adjudging  a  lien  upon  the  house  and  lot,  paramount  to  the  home- 
stead right,  for  the  amount  paid  by  Macpherson  in  discharge  of  the 
mortgage  lien;  and  also  adjudging  that  the  premises  be  sold  to 
satisfy  such  preferred  lien,  and  that  the  proceeds  of  such  sale  be 
applied  to  the  satisfaction  of  the  debts  due  the  creditors  of  the 
firm  of  Macpherson  &  Shinn. 

There  can  be  no  doubt  that  equity  and  good  conscience  is  on  the 
side  of  the  plaintiff.  Here  was  a  married  man,  dwelling  with  his 
wife  upon  premises  on  which  there  was  an  existing  mortgage. 
The  mortgage  existing,  the  wife  filed  a  declaration  of  homestead  on 
the  premises.  In  this  condition  of  affairs  the  husband  fraudulently 
abstracted  funds  from  the  assets  of  the  firm  of  which  he  was  a 
member,  and  which  was  indebted  to  third  parties,  and  with  those 
funds  paid  and  discharged  the  mortgage  lien,  thus  leaving  the  home- 
stead clear,  and  the  firm  creditors  as  well  as  his  partner  defrauded. 
In  our  opinion  there  is  no  provision  of  the  homestead  law  that  af- 
fords a  cloak  for  such  a  transaction.  That  law  was  enacted  for 
beneficent  purposes,  designed  to  secure  a  home  for  the  family,  but, 
as  said  by  counsel  for  respondent,  was  never  intended  "to  be  a 
secure  and  impregnable  asylum  in  which  to  deposit  peculations 
from  others."  It  is  true  that  the  statute  provides  that  the  home- 
stead can  only  be  conveyed  or  incumbered  by  an  instrument 
executed  and  acknowledged  b}'  both  husband  and  %vife;  and  also, 
that  it  is  by  the  statute  exempted  from  execution  or  forced  sale 
except  in  certain  enumerated  cases.  But  these  provisions  of  the 
statute  have  no  application  to  the  case  before  us.  The  one  regu- 
lates the  mode  of  transfer  or  incumbrance  of  the  homestead  be- 
tween the  spouses  and  third  persons,  when  the  same  is  to  be  effected 
by  conventional  arrangement  —  not  by  act  and  operation  of  law; 
the  other  was  designed  to  protect  it  from  forced  sale  for  ordinary 
indebtedness,  etc.  —  not  as  an  immmiity  from  torts  and  their 
legal  consequences.  Shoemake  v.  Chalfant,  47  Cal.  435;  Riddell 
V.  Shirley,  5  id.  488;  Bishop  v.  Hubbard,  23  id.  514. 

It  is  not  important  that  it  does  not  appear  that  Mrs.  Mac- 
pherson participated  in  the  wrongful  acts  of  her  husband.     If  the 


614  THE    ENFORCEMENT   OF   JUDGMENTS 

transaction  is  permitted  to  stand,  she,  as  well  as  he,  will  reap  the 
fruit  of  the  fraud,  whereas  the  interposition  of  equity  does  but 
restore  a  lien  on  the  premises  for  the  amount  paid  by  the  husband, 
in  the  maimer  already  stated,  in  satisfaction  of  the  mortgage  lien. 
In  this  way  justice  is  meted  out  to  all  parties  without  injury  to  any. 
Both  husband  and  wife  continue  to  hold  their  homestead  right, 
subject,  however,  now,  as  before,  to  a  lien  for  the  payment  of  the 
amount  with  which  the  mortgage  was  discharged.  Neither  ever 
had,  or  ever  could  have,  any  right  founded  on  the  fraudulent 
appropriation  of  funds  of  other  parties.  The  case  of  Barber  v. 
Babel,  36  Cal.  11,  relied  on  by  appellant,  is  altogether  unlike  this. 

Judgment  affirmed. 
McKiNSTRY,  J.,  Thornton,  J.,  Myrick,  J.,  and  Morrison,  C.  J., 
concurred. 


BAILEY  and  TINKLER  v.  WRIGHT  by  her  next  friend. 

Supreme  Court  of  Michigan.     1878. 

[Reported  39  Michigan,  96.] 

Campbell,  C.  J.  Defendant  in  error  replevied  a  piano  from 
plaintiffs  in  error,  who  defend  on  the  ground  that  she  purchased 
from  one  Ackley,  and  that  the  purchase  was  void  as  against  a  levy 
made  by  them  upon  an  attachment  against  him. 

Several  questions  are  presented  on  the  record,  but  inasmuch  as 
the  only  defense  was  under  the  levy,  the  validity  of  that  is  the  first 
matter  to  be  considered. 

The  defendants  by  their  own  testimony  showed  that  while 
Ackley  was  temporarily  absent,  and  his  house,  where  his  wife  was 
present  at  the  time,  was  locked  up,  they  broke  into  it  by  violence 
and  seized  the  piano  upon  the  writ. 

It  is  admitted  this  was  a  trespass,  but  it  is  claimed  the  levy  may 
be  a  good  levy  in  spite  of  the  wrongful  acts  by  which  it  was  ac- 
complished. 

We  think  this  is  too  dangerous  a  doctrine  to  be  tolerated.  Public 
policy  requires  above  all  things  that  courts  and  officers  executing 
their  process  shall  respect  the  lawful  rights  of  all  persons.  The 
practical  permission  wliich  over-zealous  officers  would  receive  to 
commit  wrongs  with  substantial  impunity,  if  their  levies  should  be 
held  good  without  regard  to  the  manner  of  their  enforcement, 
would  remove  every  check  on  lawlessness.  To  hold  that  an  act  is 
lawful  which  may  be  lawfully  resisted  is  absurd.      Such  miscon- 


KIFF    V.    OLD    COLONY    &    NEWPORT    RY.    CO.  615 

duct  should  neither  be  justified  nor  winked  at.  Any  officer  who 
breaks  the  law  should  be  held  to  be  entirely  without  excuse,  and  as 
fully  responsible  as  any  other  malefactor. 

The  doctrine  on  this  subject  is  so  fully  discussed  in  Ilsley  v. 
Nichols,  12  Pick.,  270,  and  People  v.  Hubbard,  24  Wend.,  369, 
that  we  need  not  go  into  any  further  investigation.  The  doctrine 
is  sensible  and  just,  and  is  the  only  one  whereby  private  safety  and 
public  peace  can  be  preserved.  There  can  be  no  respect  for  courts 
and  their  process  if  their  ministers  are  upheld  in  violations  of  law, 
or  if  they  can  be  lawfully  opposed  in  exercising  their  functions,  as 
they  may  be  if  such  levies  are  held  valid. 

As  the  defense  entirely  failed,  it  is  not  important  what  rulings 
were  made  on  other  points.  Judgment  must  be  affirmed  with 
costs.^ 


KIFF  V.   OLD   COLONY   &   NEWPORT  RAILWAY 
COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1875. 
[Reported  117  Massachusetts,  591.] 

Tort,  with  a  count  in  contract,  against  the  defendant  as  a  com- 
mon carrier,  for  a  failure  to  deliver  certain  property  described  in 
the  declaration  as  spirituous  liquors,  and  alleged  to  be  of  the  value 
of  S713. 

At  the  trial  in  the  Superior  Court,  before  Bacon,  J.,  the  plaintiff 
offered  evidence  tending  to  show  that  the  property  was  his,  was 
shipped  by  him,  and  came  into  the  possession  of  the  defendant  as  a 
common  carrier,  and  was  so  in  its  possession  at  Boston  in  due 
course  of  transportation  to  Belfast,  Maine;  that  the  defendant 
failed  to  deliver  it  to  him  at  Boston  on  demand. 

The  defendant  then  offered  evidence  tending  to  show  that  on 
the  day  the  goods  were  received  by  it  at  Boston,  they  were  taken 
from  its  possession  by  Robert  S.  Carroll,  a  duly  appointed  and 
qualified  constable  of  the  city  of  Boston,  without  fraud  or  collusion 
on  its  part,  against  its  will,  and  with  no  knowledge  that  they  were 
spirituous  liquors,  on  a  legal  and  valid  writ  of  -  attachment,  having 

'  As  to  the  right  of  the  sheriff  to  enter  upon  the  defendant's  or  a  stranger's 
premises,  see  Semayne's  Case,  5  Rep.  91a;  2  Freeman,  Executions,  3d  ed.,  sec. 
256;  8  Encyc.  of  PI.  &  Pr.  517. 

As  to  the  right  to  levy  on  property  on  the  defendant's  person  see  Mack  v. 
Parks,  8  Gray  (Mass.),  517;  2  Freeman,  Executions,  3d  ed.,  sec.  255.  —  Ed. 


616  THE    ENFORCEMENT   OF   JUDGMENTS 

an  ad  damnum  of  three  hundred  dollars,  against  the  plaintiff  in  the 
case  at  bar  and  in  favor  of  William  F.  Nye. 

The  defendant  then  requested  the  judge  to  rule,  that  if  the  goods 
were  taken  from  its  possession  on  a  legal  and  valid  writ  of  attach- 
ment against  the  plaintiff,  by  a  proper  officer,  without  fraud  or 
collusion  on  its  part,  against  its  will,  and  with  no  knowledge  that 
they  were  spirituous  liquors,  it  was  not  liable  for  a  failure  to  de- 
liver the  goods  to  the  plaintiff.  The  judge  declined  so  to  rule,  and 
ruled  that  the  goods  were  not  liable  to  be  taken  on  a  writ  of  attach- 
ment against  the  owner;  that  the  facts  offered  to  be  shown  by  the 
defendant  constituted  no  defence  to  this  action,  and  that  the  only 
question  for  the  jury  was  the  value  of  the  property  at  the  time  the 
defendant  failed  to  deliver  it  to  the  plaintiff,  to  which  the  de- 
fendant alleged  exceptions. 

The  judge,  after  verdict,  reported  the  case  for  the  consideration 
of  this  court;  if  the  rulings  for  the  plaintiff  were  sustained,  judg- 
ment to  be  entered  on  the  verdict;  if  not,  the  verdict  to  be  set 
aside. 

Gray,  C.  J.  In  Ingalls  v.  Baker,  13  Allen,  449,  it  was  ad- 
judged by  this  court,  upon  full  consideration  of  the  provisions  of 
the  General  Statutes  and  of  the  previous  legislation  of  the  Com- 
monwealth upon  the  subject  now  before  us,  that  the  Gen.  Sts.  c. 
86,  §  28,  prohibiting  the  sale  of  intoxicating  liquors,  directly  or 
indirectly,  except  as  authorized  in  that  chapter,  and  containing 
no  exception  of  sales  by  officers  under  legal  process,  manifested 
the  intention  of  the  Legislature  that  intoxicating  liquors  should  not 
be  sold  on  execution,  and  therefore  such  liquors  could  not  be  law- 
fully attached  on  mesne  process. 

In  1868,  the  Legislature  passed  a  new  act  to  regulate  the  sale  of 
intoxicating  liquors,  which  provided  that  "  nothing  herein  con- 
tained shall  apply  to  sales  made  by  sheriffs,  deputy  sheriffs,  cor- 
oners, constables,  collectors  of  taxes,  executors,  administrators, 
guardians,  assignees  in  insolvency  or  bankruptcy,  or  any  other 
person  required  by  law  to  sell  personal  property  ";  and  that  "  the 
eighty-sixth  chapter  of  the  General  Statutes,  and  all  acts  and  parts 
of  acts  inconsistent  herewith,  are  hereby  repealed."  St.  1868,  c. 
141,  §§  1,  26. 

But  in  1869,  the  Legislature  again  revised  the  whole  law  upon 
the  subject,  reenacted  the  provision  of  the  Gen.  Sts.  c.  86,  §  28, 
and  expressly  repealed  the  previous  statutes,  including  the  St.  of 
1868,  c.  141.     St.  1869,  c.  415,  §§  30,  65. 


RISDON    I.    AND    L.    WORKS   V.    CITIZENS'    TRACTION   CO.        617 

These  statutes  of  1868  and  1869  were  passed  after,  and  it  must 
be  presumed  ^Wth  full  knowledge  of,  the  decision  in  Ingalls  v. 
Baker.  The  conclusion  is  inevitable  that  the  Legislature,  when 
thej^  repealed  the  St.  of  1868,  c.  141,  and  reenacted  the  provision  of 
the  Gen.  Sts.  c.  86,  §  28,  intended  that  the  exception  introduced  by 
the  St.  of  1868,  and  which  had  been  held  by  this  court  not  to  exist 
under  the  General  Statutes,  should  not  exist  for  the  future  and 
that  the  law  of  the  Commonwealth  should  be  as  declared  in 
Ingalls  V.  Baker.     Low  v.  Blanchard,  116  ^lass.  272,  274. 

It  follows  that  the  plaintiff's  liquors  were  not  liable  to  attach- 
ment, the  attacliment  of  them  was  illegal,  and  the  officer  who 
attached  them  a  trespasser.  Bean  v.  Hubbard,  4  Gush.  85.  Deyo 
V.  Jemiison,  10  Allen,  410,  413. 

Every  common  carrier  of  goods  being  in  the  nature  of  an  in- 
surer, liable  —  upon  grounds  of  public  polic}^,  and  to  guard  agamst 
the  possibility  of  fraud  and  collusion  on  his  part  —  for  all  losses, 
even  b}'  accident,  trespass,  theft,  robbery,  or  any  Mnd  of  unlawful 
taking,  and  excepting  only  those  arising  by  act  of  God  or  of  public 
enemies,  it  also  follows  that  it  was  rightly  ruled  at  the  trial  that  the 
facts  offered  to  be  shown  by  the  defendant  corporation  constituted 
no  defence  to  this  action  against  it  as  a  common  carrier.  2  Kent 
Com.  (12th  ed.)  597.  Coggs  v.  Bernard,  2  Ld.  RajTn.  909,  918; 
S.  C.  3  Salk.  11.  Edwards  v.  White  Line  Transit  Co.  104  Mass. 
159.     Adams  v.  Scott,  lb.  164,  166. 

Judgment  on  the  verdict  for  the  plaintiff.^ 


RISDON  IRON  AND  LOCOMOTIVE  WORKS  v.  CITIZENS' 
TRACTION   COMPANY  OF  SAN   DIEGO. 

Supreme  Court  of  California.     1898. 

[Reported  122  California,  94.] 

Britt,  C.  Respondent  is  a  street  railroad  corporation  or- 
ganized under  the  laws  of  this  state,  and  on  Januar}^  9,  1897,  in 
virtue  of  certain  franchises  to  it  granted  by  the  cit}'  of  San  Diego, 
it  was  engaged  in  operating  a  line  of  street  railway  in  said  city  for 
the  transportation  of  passengers,  electricit}'  being  used  as  the 
motive  power.  This  is  an  action  by  appellant,  which  is  also  a 
corporation,  on  a  promissory  note  of  respondent;  on  the  day 
aforesaid  appellant  caused  a  vrrit  of  attachment,  issued  in  the 

1  Barron  v.  Arnold,  16  R.  I.  22,  11  Atl.  298,  accord.  Howe  v.  Stewart,  40  Vt. 
145,  coiUra.  —  Ed. 


618  THE    ENFORCEMENT    OF   JUDGMENTS 

action,  to  be  levied  on  certain  cars,  trucks,  electric  goods  and  sup- 
plies, fire-proof  safes,  et  cetera,  the  property  of  respondent,  then 
used  and  necessary  to  be  used  in  and  about  the  business  of  opera- 
ting said  line  of  street  railway.  Thereupon  respondent  moved  the 
court  to  discharge  the  attachment  on  the  ground  (we  state  it  gen- 
erally) that,  considering  the  nature  of  respondent's  business  as  a 
carrier  of  passengers,  and  the  uses  of  the  attached  property  in 
that  behalf,  the  same  was  not  subject  to  attachment  for  respon- 
dent's debt.  The  court  ordered  that  "  said  attachment  be  dis- 
charged in  respect  of  said  property."  Plaintiff  appealed  from 
the  order.  .  .  . 

As  to  the  merits  of  the  order,  in  our  opinion  the  quality  of  the 
exemption  from  execution  which  pertains,  except  when  otherwise 
provided  by  statute,  to  the  franchise  of  a  corporation  such  as  the 
respondent  (Gregory  v.  Blanchard,  98  Cal.  31 1),  does  not  extend  also 
to  property  of  the  kind  attached  in  this  action,  although  it  may  be 
proj^er  or  even  necessary  to  operations  under  the  franchise.  Such 
property  does  not  emanate  mediately  or  immediately  from  the 
state  like  the  privileges  embraced  in  a  franchise;  it  has  no  char- 
acter of  personal  trust  as  in  the  case  of  the  franchise,  and  in  our 
opinion  it  is  subject  to  attachment  or  execution  in  like  manner  as 
other  property  not  exempt  by  statute.  Code  Civ.  Proc,  sec.  540, 
688,  690;  Lathrop  v.  Middleton,  23  Cal.  257;  Humphreys  v. 
Hopkins,  81  Cal.  551,  15  Am.  St.  Rep.  76;  1  Freeman  on  Execu- 
tions, sec.  146a;  Coe  v.  Railroad  Co.,  10  Ohio  St.  372,  75  Am. 
Dec.  518;  State  v.  Rives,  5  Ired.  297,  307.  There  are  respectable 
authorities  which  hold  a  different  doctrine,  but  we  are  disposed  to 
think  they  are  not  supported  by  the  better  reason.  See  Hart  v. 
Burnett,  15  Cal.  593.  Whether  the  rule  of  liability  to  attachment 
or  execution  should  extend  to  sections  of  railway  lines,  or  to  parts 
of  other  similar  aggregations  of  property  susceptible  of  use  only  as  a 
unit,  need  not  be  decided.  The  cars,  trucks,  iron  safes,  and  other 
movables  seized  under  the  writ  in  this  action  are  not  such  property. 
The  order  appealed  from  should  be  reversed. 

Chipman,  C,  and  Belcher,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion  the  order  appealed 
from  is  reversed.^ 

McFarland,  J.,  Temple,  J.,  Henshaw,  J, 

1  But  compare  Northern  Pac.  Ry.  Co.  v.  Shimmell,  6  Mont.  IGl,  9  Pac.  889. 

By  statute  in  many  jurisdictions  tlie  franciiise  of  a  public;  service  corporation 
is  subject  to  levy.  Sec  Simmons  v.  Worthington,  170  Mass.  203,  49  N.  E.  114; 
Philadelphia,  etc.,  R.  R.  Co.'s  Appeal,  70  Pa.  355.  —  Ed. 


SHELDON   V.    ROOT  619 

SHELDON   V.   ROOT. 

Supreme  Judicial  Court  of  Massachusetts.     1835. 

[Reported  16  Pickering,  567.] 

Trespass  to  recover  the  value  of  thirty-five  dollars  in  silver  coin, 
which  was  taken  from  the  possession  of  the  plaintiff  by  the  defend- 
ant, who  was  a  deputy  sheriff,  on  November  7,  1831.  The  defend- 
ant pleaded  the  general  issue,  and  filed  a  brief  statement,  which 
alleged,  that  he  attached  the  coin  in  question  as  the  property  of  one 
John  Harmori,  upon  a  writ  issued  in  favor  of  Asenath  Hamilton, 
that  on  June  2,  1832,  an  execution  was  issued  upon  the  judgment 
recovered  in  that  action,  that  the  property  attached  was  applied 
towards  the  payment  thereof,  and  that  this  was  the  trespass  com- 
plained of  in  the  declaration. 

At  the  trial  in  the  Court  of  Conunon  Pleas,  before  Strong  J.,  it 
appeared,  that  the  coin  was  received  by  the  plaintiff  in  part  pay- 
ment of  a  debt  due  to  Harmon,  which  debt  was  assigned  by  Har- 
mon to  the  plaintiff  on  July  13,  1830,  with  a  power  of  attorney 
authorizing  him  to  collect  it  for  his  own  use. 

It  did  not  appear  by  the  return  of  the  execution,  that  the  coin 
had  been  taken  by  virtue  thereof,  or  that  it  had  been  advertised  for 
sale,  or  that  it  had  been  sold,  under  such  execution. 

The  defendant  contended,  that  the  assignment  was  made  by 
Harmon  for  the  purpose  of  defrauding  his  creditors;  and  this 
question  was  submitted  to  the  jury. 

The  plaintiff  read  in  evidence  the  deposition  of  N.  Roplee,  which 
was  taken  under  a  commission.  The  second  interrogatory  to  the 
deponent  was  as  follows:  "  What  was  the  situation  of  said  John 
Harmon,  on  the  13th  day  of  July,  1830,  as  to  property  ?  "  In 
answer  to  this  interrogatory,  the  deponent  testified,  "  that  the 
said  John  Harmon  was  considered,  on  the  13th  of  July,  1830,  in 
good  circumstances,  as  to  property."  The  defendant  objected  to 
the  admission  of  this  answer  in  evidence.  The  plaintiff  contended, 
that  the  objection  should  have  been  made  to  the  mterrogatory 
before  the  commission  was  issued.  The  judge  decided,  that  the 
interrogatory  was  well  enough,  but  that  the  answer  was  not  an 
answer  to  the  interrogatory;  and  it  was  rejected. 

The  judge,  in  order  to  obtain  the  opinion  of  the  jury  upon  the 
other  evidence,  instructed  them,  that  the  silver  coin  was  attach- 
able; but  that  if  it  was  not,  the  plaintiff  could  not  take  the  objec- 
tion. 


620  THE    ENFORCEMENT   OP   JUDGMENTS 

The  jury  returned  a  verdict  for  the  defendant.  The  plaintiff 
excepted. 

Wilde,  J.,  delivered  the  opinion  of  the  Court.  Whatever 
doubts  may  have  been  entertained  formerly  on  the  question, 
whether  money  be  attachable  and  can  be  taken  on  execution  or 
not,  they  are,  we  think,  entirely  removed  by  the  case  of  Turner  v. 
Fendall,  1  Cranch,  117. 

There  seems  to  be  no  good  reason  why  money  should  not  be 
attached  and  taken  on  execution  as  well  as  other  property.  The 
quaint  reasons  given  in  some  of  the  old  cases,  viz.  that  money 
cannot  be  identified,  and  cannot  be  sold,  seems  to  have  very  little 
weight;  for  money  may  be  identified  as  well  as  other  property, 
though  not  always  with  equal  facility.  Then  as  to  the  sale  of 
money,  that  to  be  sure  would  be  an  absurdity,  and  for  that  reason 
the  St.  1783,  c.  57,  §  5,  which  directs  the  sale  of  goods  or  chattels 
taken  on  execution,  is  not  applicable  to  money;  but  this  by  no 
means  shows,  that  money  camiot  be  taken  on  execution.  On  the 
contrary,  the  sheriff  is  expressly  directed  by  the  form  of  the  exe- 
cution as  prescribed  by  law,  to  cause  the  execution  to  be  paid  and 
satisfied  out  of  the  money,  goods  or  chattels  of  the  debtor.  This 
is  decisive  as  to  the  question,  whether  money  may  be  taken  on 
execution.  And  if  money  is  liable  to  be  taken  on  execution,  we 
think  it  equally  clear  that  it  is  liable  to  attachment.  The  object  of 
an  attachment  is,  to  secure  such  property  of  the  debtor  as  may  be 
liable  to  be  taken  on  execution.  The  officer  is  commanded  to 
attach  the  goods  and  estate  of  the  debtor,  which  certainly  includes 
money.  A  bequest  of  a  man's  goods  and  estate  would  undoubtedly 
pass  money;  and  the  command  of  the  writ,  therefore,  authorized 
the  attachment. 

But  it  is  objected,  that  the  money  attached  was  not  the  property 
of  Harmon,  and  this  objection  would  be  well  founded,  if  it  had 
appeared,  that  the  plaintiff  was  an  officer  or  an  agent  or  attorney 
lawfully  authorized  to  collect  the  money.  But  he  obtained  the 
money  by  means  of  a  fraudulent  assignment,  and  as  against  the 
creditors  of  Harmon  he  had  no  right  or  property,  and  therefore 
cannot  maintain  this  action.  By  the  payment  to  the  plaintiff  the 
debt  to  Harmon  was  discharged,  and  the  money  became  his  prop- 
erty, for  it  could  not  become  the  property  of  the  plaintiff,  by 
reason  of  the  fraud. 

In  regard  to  the  deposition,  we  think  it  was  rightfully  rejected. 
The  answer  of  the  deponent  was  hearsay  evidence,  as  to  the  cir- 
cumstances of  Harmon,  stating  what  they  were  reputed  to  be,  and 


WILDER    V.    BAILEY    AND    DARLING  621 

not  what  he  knew  them  to  be.  It  was  contended  that  the  objection 
should  have  been  made  to  the  interrogatory  before  the  commission 
issued.  But  the  interrogatory  was  unexceptionable.  The  witness 
was  asked,  what  were  the  circumstances  of  Harmon,  and  not  what 
they  were  reputed  to  be. 

Judgment  of  the  Court  of  Common  Pleas  affirmed} 


WILDER   V.   BAILEY  AND   DARLING,  his  Trustee. 

Supreme  Judicial  Court  of  Massachusetts.     1807. 

[Reported  3  Massachusetts,  289.] 

The  question  in  this  action  arose  from  the  answer  of  the  trustee, 
and  from  an  agreement  on  record,  from  both  which  it  appeared  that 
Darling  was  a  deputy  sheriff,  and  had  collected  a  sum  of  money  on 
an  execution  issued  upon  a  judgment,  in  which  Bailey,  the  princi- 
pal defendant,  was  the  creditor,  and  Caleb  Wilder  was  the  debtor. 
Darling  held  this  money  at  the  time  of  the  service  of  this  process 
upon  him,  the  said  execution  being  returnable  at  a  period  posterior 
to  the  said  service.  The  question  for  the  determination  of  the 
Court  was,  whether  Darling,  upon  these  facts,  was  liable  to  a 
foreign  attachment  as  the  trustee  of  Bailey,  in  virtue  of  his  holding 
the  said  sum  of  monej';  and  it  was  submitted  to  the  Court,  without 
argument,  at  the  last  October  term  in  this  county.  The  cause  was 
continued  for  advisement;  and  now,  at  this  term,  the  Court 
delivered  their  opinion  as  follows :  -  — 

Parker,  J.  Actions  similar  to  this  are  frequently  instituted  at 
the  instigation  of  judgment  debtors  for  the  purposes  of  revenge  or 
delaj';  and  there  has  been  a  prevailing  opinion  at  the  bar  that  such 
actions  may  be  supported.  This  opinion  arose  from  the  very 
general  and  comprehensive  words  of  the  statute,  by  which  all  the 
goods,  effects  and  credits  of  the  debtor  are  made  subject  to  this 
species  of  attachment,  in  whose  hands  or  possession  soever  they 
may  be  found.  Notwithstanding  these  expressions,  it  was  decided 
that  an  aggregate  corporation  is  not  liable  to  this  process,  because 
they  are  not  capable  of  disclosing  upon  oath. 

1  Turner  v.  Fendall,  1  Cranch  (U.  S.),  117,  2  L.  ed.  53;  Handy  v.  Dobbin, 
12  Johns.  (N.  Y.),  220,  accord.  Compare  Clarke  v.  Larremore,  188  U.  S. 
486,  47  L.  ed.  555,  23  S.  Ct.  363.  —  Ed. 

2  The  concurring  opinions  of  Sedgwick,  J.,  and  Parsons,  C.  J.,  are  omitted. 
—  Ed. 


622  THE    ENFORCEMENT   OF   JUDGMENTS 

I  am  very  glad  that  the  question  in  this  case  is  presented  to  us  in 
so  simple  a  form,  that  it  may  be  put  at  rest,  and  a  check  given  to  a 
practice,  from  which  much  mischief  has  unquestionably  arisen. 

When  an  officer  receives  money  upon  an  execution,  the  law  pre- 
scribes his  duty  in  relation  to  it.  He  is  not  bound  to  pay  it  over 
to  the  creditor  until  the  return  day  of  the  execution.  From  his 
receipt  of  it  until  that  day,  it  is  not  the  creditor's  money,  but  is  in 
the  custody  of  the  law;  and  in  some  respects  it  is  still  under  the 
control  of  the  law.  I  am  decidedly  of  opinion  that  the  trustee  in 
this  case  cannot  be  held. 

Sewall,  J.  I  consider  the  statute  giving  this  process  of  foreign 
attachment  as  a  very  beneficial  one,  and  am  therefore  for  applying 
a  liberal  construction  to  it.  But  there  must  be  bounds  to  this  liber- 
ality. In  the  case  before  us,  an  officer,  in  execution  of  a  precept  of 
the  law,  has  received  money,  for  which  he  is  accountable  to  a  third 
person.  An  attempt  is  made  to  interrupt  the  execution  of  the 
precept,  and  to  divert  the  money  from  the  course  which  the  law  has 
prescribed.  If  such  practice  should  be  permitted,  great  incon- 
venience and  mischief  would  be  the  consequence.  The  money  was 
in  the  custody  of  the  law,  and  in  my  opinion  was  not  liable  to 
be  arrested  in  the  hands  of  the  officer. 

Trustee  discharged.^ 


BROWER,  Sheriff  &c.,  v.   SMITH  and  another. 
Supreme  Court  of  Wisconsin.     1863. 

[Reported  17  Wisconsin,  410.] 

By  the  Court,  Paine,  J.  The  Dodge  County  Bank  made  an 
assignment  to  Lewis  &  Schuyler,  and  delivered  to  them,  among 
other  things,  its  books  of  account.  Kellogg  &  Larke  sued  the 
bank,  and  summoned  Lewis  &  Schuyler  as  garnishees.  They 
recovered  judgment  against  the  bank,  and  it  was  also  adjudged, 
as  against  the  garnishees,  that  the  assigmnent  to  them  was  void, 
and  that  the  property  they  held  was  the  property  of  the  bank 
and  they  were  ordered  to  deliver  it  over  to  the  sheriff,  which  they 
did.      The  defendants  in  this  suit  were  indebted  to  the  bank,  as 

1  Compare  Thompson  v.  Brown,  17  Pick.  (Mass.),  462,  and  Prentiss  v. 
Bliss,  4  Vt.  513,  in  which,  under  similar  facts,  an  attachment  was  disallowed. 
But  see  Wehle  v.  Conner,  83  N.  Y.  231,  contra.  See  Drake,  Attachment,  7th 
ed.,  sees.  251,  506.  —  Ed. 


BROWER   V.    SMITH  623 

appeared  by  its  books  of  account,  and  this  action  is  brought  by  the 
sheriff  to  recover  that  debt. 

Subdivision  4  of  section  54,  chap.  130,  R.  S.,  concerning  at- 
tachments, provides  that  until  the  judgment  is  paid,  "  the  sheriff 
may  proceed  to  collect  the  notes  and  accounts  and  other  evidences 
of  debt  that  may  have  been  seized  or  attached  by  virtue  of  the 
attachment,  or  that  may  have  been  delivered  up  by  any  person 
summoned  as  garnishee,"  &c.  And  the  question  is,  whether  the 
account  against  these  defendants  has  been  so  attached  as  to  en- 
able the  sheriff  to  maintain  this  action. 

The  respondent  contends  that  this  result  follows  from  the  mere 
fact  that  he  has  obtained  possession  of  the  books  of  account  of  the 
bank,  and  that  the  possession  of  those  gives  the  same  right  to 
maintain  suits  for  the  accounts  appearing  in  them,  as  would  the 
seizure  of  a  promissory  note  due  the  bank,  to  maintain  a  suit  on 
that.  This  conclusion  is  based  upon  the  claim  that  books  of 
account  are  evidences  of  debt,  and  that  our  statute  defines  prop- 
erty as  including  evidences  of  debt.  But  we  are  of  the  opinion 
that  books  of  account  are  not  such  evidences  of  debt,  that  the  mere 
obtaining  possession  of  them  by  an  attaching  officer  constitutes 
any  attachment  of  the  debts  mentioned  in  them.  Those  evi- 
dences of  debt  which  may  be  attached  by  mere  seizure,  are  only 
those  which  are  complete  and  perfect  evidences  in  themselves. 
But  account  books  are  not  such.  They  are  not  evidence  at  all  until 
certain  facts  are  established  in  respect  to  them  by  the  oath  of  the 
party  keeping  them,  or  of  the  person  who  made  the  entries;  and  in 
no  case  are  they  evidence  of  the  payment  of  money  beyond  the 
amount  of  five  dollars  in  one  item.  R.  S.,  chap.  137,  sees.  88,  89. 
We  are  of  the  opinion,  therefore,  that  the  mere  obtaining  possession 
of  these  books,  did  not  vest  in  the  sheriff  any  right  to  bring  this 
suit. 

The  respondent  relies  on  the  language  already  quoted  from  sec. 
54,  to  the  effect  that  the  sheriff  shall  "  proceed  to  collect  the  notes 
and  accomits,  &c.,  which  may  have  been  seized  and  attached,  or 
may  have  been  delivered  up  by  any  garnishee."  But  certainly  it 
could  never  have  been  designed  to  give  any  greater  effect  to  the 
possession  of  the  account  books  when  obtained  from  a  person  who 
happened  to  have  them  in  his  possession  as  garnishee,  than  would 
have  been  given  if  the  sheriff  had  taken  them  from  the  custody  of 
the  attachment  debtor  himself.  The  phrase  "  that  may  have  been 
delivered  up  by  any  person  summoned  as  garnishee,"  must  be 
construed  as  applicable  only  to  those  kinds  of  property  of  which 


624  THE    ENFORCEMENT    OF   JUDGMENTS 

possession  alone  would  establish  the  right,  as  notes  and  other 
instruments,  in  accordance  with  the  maxim,  reddendo  singula 
singulis. 

Our  conclusion  seems  to  be  placed  beyond  any  doubt  by  the 
provisions  of  section  13,  which  point  out  specifically  how  "  a  debt 
or  other  property  incapable  of  manual  delivery  to  the  sheriff," 
may  be  attached,  which  in  the  case  of  a  debt  is,  by  leaving  a  certi- 
fied copy  of  the  attachment  with  the  debtor,  with  a  notice  showing 
the  property  levied  on.  Now,  if  any  other  creditors  of  the  bank, 
after  the  sheriff  got  possession  of  the  account  books,  had  attached 
the  debt  due  from  these  defendants,  by  complying  with  this  section, 
it  is  evident  their  attachment  would  have  held  it,  as  against  this 
action,  if  priority  is  to  be  allowed  at  all  among  creditors  of  such  a 
corporation.  It  would  be  clearly  so,  if  the  attachment  debtor 
was  an  individual.  And  yet  it  would  be  so  only  because  the  prior 
possession  of  the  account  books  of  the  debtor  did  not  constitute 
any  attachment  of  the  debts  appearing  in  them. 

For  these  reasons,  we  think  the  debt  due  from  these  defendants, 
has  not  been  attached,  as  there  is  no  pretense  that  section  13  was 
complied  with;  and  consequently  that  this  action  cannot  be 
sustained. 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded 
for  a  new  trial. ^ 


O.   L.   PACKARD  MACHINERY  COMPANY  v.   LAEV, 

Garnishee. 

Supreme  Court  of  Wisconsin.     1898. 

[Reported  100  Wisconsin,  644.] 

WiNSLOW,  J.2  .  .  .  The  objection  that  corporate  stock  cannot 
be  reached  by  garnishing  the  person  in  possession  of  the  certificates 
seems  also  fatal  to  the  plaintiff's  case.  Garnishment  simply 
reaches  property,  moneys,  credits,  and  effects  of  the  defendant  in 
the  possession  or  control  of  the  garnishee,  and  debts  due  or  to 
become  due.     R.  S.  1878,  sec.  2768.     Corporate  stock  is  property. 

1  Rosenthal  v.  Circuit  Judge,  98  Mich.  208,  57  N.  W.  112,  accord. 

As  to  whether  a  judgment  may  be  reached  by  creditors,  see  Coppell  v 
Smith,  4  T.  R.  312;  Franklin  v.  Ward,  3  Mason  (U.  S.),  136;  Howell  v.  Free- 
man, 3  Mass.  121;  Shinn  v.  Zimmerman,  3  Zab.  (N.  J.),  150;  Norton  v.  Winter, 
1  Ore.  47;   1  Freeman,  Executions,  3d  ed.,  sec.  112.  —  Ed. 

2  Only  a  part  of  the  opinion  of  the  court  is  given.  —  Ed. 


SHAW   V.    AVELINB  625 

but  the  certificate  of  such  stock  is  not  the  stock.  It  is  much  Hke 
a  title  deed  or  a  bill  of  sale,  which  is  not  the  property  itself,  but 
simply  the  evidence  of  title  to  property.  Our  statute  provides  a 
plain  and  certain  way  by  which  corporate  stock  may  be  attached 
or  seized  upon  execution  and  sold.  R.  S.  1878,  sees.  2738,  2989, 
2990.  The  sheriff  is  required  to  leave  a  copy  of  the  writ  with  the 
clerk,  treasurer,  or  cashier  of  the  corporation,  and  obtain  from  him 
a  certificate  of  the  number  of  shares  of  the  corporate  stock  owned 
by  the  debtor,  and  may  thereafter  sell  such  shares,  and  give  a 
certificate  of  title  to  the  purchaser.  This  course  was  open  to  the 
plaintiff,  and  he  should  have  pursued  it.  In  no  other  way  could 
he  obtain  satisfaction  out  of  the  stock.  Rood,  Garnishment,  §  108; 
Mooar  v.  Walker,  46  Iowa,  164;  Younkin  v.  Collier,  47  Fed.  Rep. 
571. 

By  the  Court.  —  Judgment  reversed,  and  action  remanded  with 
directions  to  dismiss  the  garnishment  proceedings.^ 


SHAW  V.   AVELINE. 

Supreme  Court  of  Indiana.     1854. 

[Reported  5  Indiana,  380.] 

Stuart,  J.^  Shaw  filed  his  bill  in  chancery  against  Aveline, 
alleging  a  judgment  at  law,  execution,  and  return  of  nulla  bona. 
It  was  further  alleged  that  Aveline  had  a  judgment  at  law  in  the 
same  Court  against  a  Miami  Indian.  The  prayer  of  the  bill, 
among  other  things,  is,  that  Aveline  be  compelled  to  assign  his 
judgment  to  Shaw,  and  that  Aveline's  judgment-debtor,  the 
Indian,  who  is  also  made  a  party  to  the  bill,  be  required  to  pay  the 
amount  of  that  judgment  to  Shaw,  to  be  applied  on  the  judgment 
against  Aveline. 

In  brief,  it  is  a  bill  in  equity  by  a  judgment-creditor  seeking  to 
subject  a  chose  in  action. 

At  the  March  term  of  1851,  the  defendants  moved  to  dismiss  the 
bill  for  want  of  equity;  and  the  Court  sustained  the  motion. 
Shaw  prosecutes  error. 

There  is  no  appearance  and  no  brief  in  behalf  of  Aveline.  .  . 

From  all  these  authorities,  it  is  clear  that  the  jurisdiction  to 
subject  choses  in  action  does  not  exist  at  common  law.     At  one 

'  See  1  Freeman,  Executions,  3d  ed.,  sec.  112a.  —  Ed. 
'  A  part  of  the  opinion  is  omitted.  —  Ed. 


626  THE  ENFORCEMENT  OF  JUDGMENTS 

time  it  was  held  in  England,  that  equity  had  such  power;  but  it 
was  denied  and  wholly  overthrown  in  the  times  of  Thurlow  and 
Eldon.  Such  is  also  the  prevailing  American  doctrine.  Many  of 
the  states  have,  therefore,  interposed  by  statute,  giving  various 
degrees  of  relief  under  what  is  sometimes  denominated  a  creditor's 
bill.  In  Ohio  and  Kentucky,  the  jurisdiction  of  Courts  of  chan- 
cery over  choses  in  action  is  denied,  save  only  to  the  extent  to 
which  such  jurisdiction  has  been  conferred  by  statute.  Gilmore  v. 
The  Miami  Bank  et  al.,  3  Ohio  502.  —  Douglass  v.  Huston,  6 
Ohio  156.  —  Cadwallader  v.  The  Granville  Alexandrian  Society, 
11  Ohio  292.  —  Buford  v.  Buford,  1  Bibb  305.  —  McFerrin  v. 
Jones,  2  Litt.  219.  —  Cosby  v.  Ross,  3  J.  J.  Marsh.  290.  —  Crozier 
V.  Young,  3  Mon.  158.  —  Estill  v.  Rodes,  1  B.  Mon.  314.  —  Moore 
V.  Young,  1  Dana  516.  —  Doyle  v.  Sleeper,  id.  534.  In  this  latter 
case,  the  Court  say,  that  the  weight  of  authority  is  opposed  to  the 
doctrine  advanced  in  Bayard  v.  Hoffman,  supra;  and  add,  that  the 
legislature  of  Kentucky  virtually  admitted  the  common  law  as 
denying  the  jurisdiction,  when  in  1821  the  act  was  passed  authoriz- 
ing Courts  of  equity  to  subject  choses  in  action.  So,  also,  in  New 
Jersey.     Fuller  v.  Taylor,  2  Halst.  Chy.  301. 

In  Michigan,  the  chancery  powers  of  the  Courts  to  subject 
choses  in  action,  are  conferred  by  statute;  and  the  complainant  is 
held  to  great  strictness  in  bringing  himself  within  the  statutory 
requirements.  Smith  v.  Thompson,  Walk.  Ch.  1.  —  Williams  v. 
Hubbard,  id.  28.  — -  Beach  v.  White,  id.  495.  Accordingly  the 
case  of  Lorman  v.  Clarke,  2  McLean  568,  referred  to  in  argument,  is 
a  decision  under  the  statute  of  Michigan,  which  is  quoted  in  the 
opinion.  What  is  added  about  the  general  principles  of  equity,  is  a 
deserved  eulogium  on  the  legislature,  which  enables  the  Courts  to 
frustrate  fraud.  But  even  the  opinion  of  so  eminent  a  judge  as  to 
what  the  law  should  be,  cannot  be  regarded  with  the  authority  of 
an  adjudicated  case,  to  settle  what  the  law  is.  If  the  case  of  Van 
Ness  V.  Hyatt,  13  Peters  294,  goes  the  length  claimed  for  it  by 
judge  McLean,  it  stands  alone  against  the  whole  current  of  recent 
authorities  both  in  England  and  the  United  States. 

Whenever  the  power  is  deemed  desirable,  it  is  better  that  the 
legislature  confer  it,  than  that  the  Courts  should  assume  it.  It  is 
said  in  Lorman  v.  Clarke,  supra,  to  be  a  reproach  to  our  juris- 
prudence, that  the  debtor  should  be  able  to  secrete  his  property 
from  execution.  But  if  a  reproach,  it  seems  rather  to  be  so  to  the 
legislative  than  the  judicial  department.  With  so  many  authori- 
ties staring  them  in  the  face,  the  assumption  of  such  power  by  the 


BARCLAY   V.    SMITH  627 

Courts  would  be  strongly  questioned.  Nor  could  the  Courts 
easily  give  form  to  the  remedy,  or  create  limitations  to  guard  their 
usurpation  from  abuse.  But  if  conferred  by  the  legislature,  the 
extent  of  the  jurisdiction  could  be  carefully  guarded,  enlarging  or 
limiting  it  as  experience  might  suggest.  Whether,  for  instance,  it 
should  embrace  only  choses  in  action  arising  ex  contractu,  or  should 
be  made  to  cover  every  cause  of  action  a  debtor  might  have, 
whether  arising  from  contract  or  tort,  would  present  considera- 
tions of  policy  more  properly  legislative  than  judicial. 
Per  Curiam.  —  The  decree  is  affirmed  with  costs.^ 


BARCLAY  V.   SMITH. 

Supreme  Court  of  Illinois.     1883. 

[Reported  107  Illinois,  349.] 

Craig,  J.  There  is  but  one  question  presented  by  this  record, 
and  that  is,  whether  a  certificate  of  membership  in  the  board  of 
trade  of  the  city  of  Chicago,  is  property,  which  is  liable  to  be  sub- 
jected to  the  payment  of  the  debts  of  the  holder  by  legal  proceed- 
ings. 

The  Board  of  Trade  of  Chicago  is  a  corporation  created  by  a 
special  act  of  the  legislature  of  the  State,  with  power  to  sue  and  be 
sued,  to  purchase  and  hold  property  not  to  exceed  at  any  time 
$200,000.  The  objects  of  the  corporation,  as  declared  by  the 
charter  and  by-laws,  are  "  to  maintain  a  commercial  exchange;  to 
promote  uniformity  in  the  customs  and  usages  of  merchants;  to 
inculcate  principles  of  justice  and  equity  in  trade;  to  facilitate  the 
speedy  adjustment  of  business  disputes;  to  acquire  and  to  dissemi- 
nate valuable  commercial  and  economic  information;  and  generally, 
to  secure  to  its  members  the  benefits  of  cooperation  in  the  further- 
ance of  their  legitimate  pursuits."  By  the  12th  section  of  the 
charter  the  corporation  is  prohibited  from  transacting  any  business 
excepting  such  as  is  usual  in  the  management  of  boards  of  trade  or 
chambers  of  commerce.     No  dividends  whatever  are  made  among 

1  See  Greene  v.  Keene,  14  R.  I.  388.  But  see  Burton  v.  Farinholt,  86  N.  C. 
260.  See  also  Ames,  Cases  on  Trusts,  ed.  of  1905,  444;  6  Pomeroy,  Equity 
Jurisprudence,  3d  ed.,  Chap.  XLV. 

For  the  present  EngUsh  law  as  to  reaching  the  judgment  debtor's  choses  in 
action,  see  Rules  of  the  Supreme  Court,  1883,  Order  XLV  (Annual  Practice, 
1915,  pp.  802  et  seq.);  Odgers,  Pleading,  7th  ed.,  Chap.  XXII;  Williams, 
Personal  Property,  17th  ed.,  250.  —  Ed. 


628  THE    ENFORCEMENT    OF   JUDGMENTS 

the  members  of  the  corporation.  No  person  can  become  a  mem- 
ber unless  he  receives  the  votes  of  not  less  than  ten  of  the  board  of 
directors.  A  certificate  of  membership  is  transferable  on  the 
books  of  the  association  to  any  person  eligible  to  membership  who 
may  be  approved  by  the  board  of  directors,  after  due  notice.  The 
corporation  has  power  to  make  by-laws  for  the  management  of  its 
business,  and  the  mode  in  which  it  shall  be  transacted.  Under  the 
by-laws  the  board  of  directors  are  required  to  provide  necessary 
rooms  and  offices  for  the  purposes  of  the  association,  which  shall  be 
kept  open  on  all  business  days  durmg  certain  hours,  for  the  admis- 
sion of  the  members. 

From  an  examination  of  the  charter  and  by-laws  of  the  corpora- 
tion it  is  apparent  that  no  member  receives  any  pecuniary  profit 
from  the  corporation,  or  from  its  capital  or  revenue,  except  such 
advantage  in  the  way  of  trade  that  he  may  derive  from  the  mere 
privilege  of  being  a  member,  and  from  being  admitted  to  transact 
business  in  the  rooms  of  the  board.  If  dividends  were  authorized 
to  be  declared  among  the  members,  as  stockholders,  of  the  earnings 
or  accmnulations  of  money  or  property,  there  might  be  some 
ground  for  holding  that  a  certificate  of  membership  was  property, 
and  liable  to  be  taken  for  the  debts  of  the  member;  but  such  is  not 
the  case.  However  much  money  or  property  may  be  accumulated 
by  the  board,  it  is  powerless  to  declare  a  dividend  among  its 
members. 

When  the  nature  aind  object  of  a  certificate  of  membership  are 
understood,  can  it,  upon  any  reasonable  principle,  be  said  to  be 
property  ?  In  Bouvier's  Law  Dictionary,  the  author,  under  the 
head  of  "  Property,"  gives  a  definition,  as  follows:  "  The  right  and 
interest  which  a  man  has  in  lands  and  chattels  to  the  exclusion  of 
others."  The  author  also  announces  the  rule  that  property,  con- 
sidered as  an  exclusive  right  to  things,  contains  not  only  the  right 
to  use  those  things,  but  a  right  to  dispose  of  them  as  the  owner  may 
desire.  The  certificate  of  membership  is  neither  lands  nor  chat- 
tels, nor  can  a  member  dispose  of  his  membership  as  he  pleases.  A 
sale  can  only  be  made  to  such  person  as  the  board,  through  its 
directors,  may  determine.  If,  then,  a  certificate  of  membership  is 
])roperty,  it  does  not  fall  within  the  definition  given,  nor  do  we 
know  of  any  definition  of  property  within  which  it  would  fall. 

It  may  be  saitl  that  a  certificate  of  membership  has  a  large  value, 
and  hence  ought  to  be  regarded  as  property.  It  is  true  that  the 
board  requires  a  person  who  becomes  a  member  to  pay  an  initiation 
fee  of  $5000,  and  the  evidence  shows  that  a  certificate  of  member- 


BARCLAY   V.    SMITH  629 

ship  is  regarded  in  the  market  as  worth  $4000;  but  this  does  not 
change  the  character  of  the  right.  A  church  organized  under  our 
statute  may  own  property,  for  the  uses  and  privileges  of  its  mem- 
bers, worth  as  much  as  the  property  possessed  by  the  board  of 
trade,  and  the  right  of  a  member  to  attend  the  meetings  of  the 
church  and  occupy  a  pew  may  be  regarded  as  a  high  and  valuable 
right  and  yet  the  right  of  membership  has  never  been  regarded  as 
property  which  may  be  subjected  to  the  payment  of  the  debts  of  a 
member.  The  same  may  also  be  said  in  regard  to  the  membership 
in  a  masonic  lodge,  or  a  social  club,  and  various  other  organizations 
of  a  similar  character. 

There  may  be,  and  doubtless  are,  many  privileges  which  a  man 
may  possess  that  are  valuable  to  him,  which  do  not  fall  wthin  the 
definition  of  property,  and  which  may  be  enjoyed,  but  cannot  be 
subjected  to  the  pa;>Tnent  of  debts.  A  liquor  dealer  may  be 
licensed  to  sell  liquors  at  a  certain  place,  for  a  certain  time,  for 
which  privilege  he  is  required  to  pay  $1000  per  annum.  That 
privilege  is  worth  to  him  much  more  than  he  is  required  to  pay; 
but  is  that  privilege  property  which  may  be  sold  on  execution,  or 
reached  by  a  creditor's  bill,  for  the  payment  of  debts  ?  We  have 
never  so  understood  the  law.  A  peddler  or  an  auctioneer  may  be 
licensed  to  carry  on  his  vocation  within  a  certain  district,  for  which 
he  may  pay  a  stipulated  sum  of  money.  The  profits  arising  from 
the  privilege  of  exercising  the  right  may  be  much  larger  than  can  be 
earned  by  a  person  exercising  the  right  to  transact  business  on  the 
floor  of  the  board  of  trade,  and  yet  we  have  never  understood  that 
such  a  privilege  was  liable  to  be  seized  and  sold  in  satisfaction  of 
debts.  The  attorney  and  the  physician  are  licensed  to  practice 
their  professions.  It  costs  money  to  obtain  such  a  privilege.  It 
may  be,  and  is,  a  valuable  right,  and  yet  such  a  right  cannot  be 
taken  by  a  creditor's  bill  and  sold  in  satisfaction  of  a  debt.  The 
same  may  be  said  in  regard  to  various  other  privileges  which  may 
be,  and  often  are,  conferred  upon  persons  in  the  different  pursuits 
of  life. 

A  certificate  of  membership  in  the  Board  of  Trade  of  Chicago 
empowers  the  person  who  is  admitted  as  a  member  to  attend  the 
meetings  of  the  board,  and  deal  in  the  various  products  of  the 
country.  This  right  to  appear  at  a  certain  place  and  transact 
certain  business,  in  our  judgment  is  not  property,  but  it  is  a  mere 
privilege  conferred  upon  the  member,  which  cannot  be  reached  and 
sold  by  the  process  of  courts.  It  is  a  right  which  may  be  regarded 
as  valuable,  but  which  cannot  be  divested  or  destroyed,  except  by 


630  THE    ENFORCEMENT    OF   JUDGMENTS 

the  board  itself,  for  a  failure  of  the  member  to  conform  to  the 
rules  and  regulations  of  the  association.  This  view  is  in  harmony 
with  the  rule  announced  by  the  Supreme  Court  of  the  State  of 
Pennsylvania,  where  a  similar  question  arose.  Thompson  v. 
Adams,  93  Pa.  St.  55;   Pancoast  v.  Gowen,  id.  66. 

We  have  been  referred  to  some  cases  which  seem  to  hold  a  dif- 
ferent view,  but  without  entering  upon  a  review  of  the  cases  cited 
we  do  not  think  they  establish  the  correct  rule,  and  we  are  not 
inclined  to  follow  them. 

The  judgment  of  the  Appellate  Court  will  be  reversed,  and  the 
cause  remanded.  Judgment  reversed.^ 


LEGGETT,   As  Assignee,  Etc.,  v.  WALLER. 
Supreme  Court  of  New  York,  Special  Term.     1902. 

IReported  39  Miscellaneous  Reports,  408.] 

Fitzgerald,  J.  This  is  an  application  by  a  judgment  creditor 
for  the  appointment  of  a  receiver  of  the  property  of  his  judgment 
debtor  as  disclosed  by  the  examination  of  the  latter  in  supple- 
mentary proceedings.  The  property  in  question  consists  of  a  seat 
in  the  Consolidated  Exchange,  of  the  estimated  value  of  $2000, 
but  against  which  the  debtor  testifies  there  are  debts,  for  money 
loaned,  now  outstanding.  The  application  is  opposed  upon  the 
three  grounds :  that  the  examination  discloses  no  property  to  which 
the  receivership  could  attach;  that  the  seat  and  its  attendant 
privileges  constitute  the  defendant's  necessary  working  tools  and, 
as  such,  are  exempt  from  judgment  creditors,  and  finally,  that  the 
cases  in  which  such  applications  have  been  granted  concerned  only 
the  New  York  Stock  Exchange,  the  rules  of  which  are  different 
from  those  of  the  Consolidated  Exchange.  So  far  as  the  judg- 
ment creditor's  right  to  the  receivership  is  concerned  the  first 
objection  is  of  no  force.  The  examination  does  disclose  that  the 
debtor  owns  a  seat  in  the  Consolidated  Exchange  of  the  estimated 
value  of  $2000.  It  is  true  that  the  examination  states  that  against 
this  seat  there  are  claims  of  other  members;  and  these  claims,  un- 
der the  rules  of  the  association,  have  preference  over  and  are  to  be 
paid  before  all  other  claims.  The  debtor  docs  not  show,  however, 
the  nature  or  extent  of  these  claims  or  disclose  the  probability  that 

1  A  petition  for  rehearing  was  denied.  The  opinion  of  Craig,  J.,  and  the  dis- 
senting opinion  of  Mulkey,  J.,  on  the  petition,  are  omitted.  —  Ed. 


LEGGETT   V.    WALLER  631 

the  amount  thereof  is  sufficient  to  exhaust  the  fund  that  might  be 
created  by  a  disposition  of  the  seat;  and  it  may  be  that  he  has  a 
substantial  equity  therein,  to  which  the  receiver  would  be  entitled. 
Where  there  are  conflicting  claims  against  the  debtor's  property, 
the  court  cannot  try  and  determine  them,  but  should  appoint  a 
receiver  (Teller  v.  Randall,  40  Barb.  242;  Corning  v.  Tooker,  5 
How.  Pr.  IG),  who  will  receive  such  title  to  the  property  as  was  in 
the  judgment  debtor  and  subject  to  the  conditions  and  restrictions 
by  which  it  was  surrounded  in  the  latter's  hands.  The  alleged 
existence  of  the  other  indefinite  claims  should  not  prevent  the 
receivership,  though  it  may  subsequently  cause  that  receivership 
to  be  of  no  practical  benefit,  so  far  as  a  realization  of  assets  is  con- 
cerned. The  second  objection  is  made  upon  the  authority  of 
Keiher  v.  Shipherd,  4  Civ.  Pro.  274,  where  it  was  held  that  the 
share  in  the  New  York  Law  Institute  of  the  value  of  $150,  held  by 
the  judgment  debtor,  a  lawyer  in  active  practice,  and  the  privilege 
it  confers,  constituted  his  necessary  working  tools  and  library  as  a 
member  of  the  legal  profession,  and  as  such  was  exempt  from  judg- 
ment creditors.  That  case  is  not  identical  with  the  one  now  before 
the  court,  for,  though  the  constitution  of  the  law  institute  and  the 
nature  and  extent  of  the  privilege  of  membership  therein  were  not 
in  that  case  and  are  not  now  fully  set  forth  before  the  court,  for 
the  purpose  of  comparison,  it  may  be  said  that  the  share  and  its 
attendant  privileges  are  commonly  supposed  to  consist  of  the  right 
to  make  use  of  the  books  and  facilities  supplied  by  the  institute. 
These  books  and  similar  facilities  constitute  the  working  tools  of 
the  lawj'er.  It  is  financially  and  physically  impossible  for  the 
ordinary  practitioner  to  own  and  keep  all  or  most  of  the  books  in 
which  the  law  is  recorded  or  expounded,  but  he  may  obtain  access 
to  and  the  use  of  them  by  securing  membership  in  an  association 
which  does  possess  them,  and  when  he  does,  that  membership  con- 
stitutes, in  law,  his  books  or  library  or  working  tools.  Such  is  the 
full  extent  and  significance  of  the  decision  referred  to,  as  is  evident 
from  the  authority  upon  which  it  is  based,  viz.,  Robinson's  case, 
3  Abb.  Pr.  46G,  where  it  is  held  that  the  professional  books  neces- 
sary to  a  professional  man  who  supports  his  family,  for  the  practice 
of  his  profession,  are  exempt  from  execution  as  a  part  of  his  family 
library.  The  membership  in  such  an  institute,  with  its  privileges 
as  above  stated  and  as  commonly  understood,  is  essentially  dif- 
ferent, in  legal  nature,  from  the  valuable  right,  license  or  franchise 
to  transact  business,  in  a  special  board  or  exchange,  with  a  limited 
membership,  and  with  peculiar  rights  and  suitable  facilities  for  the 


632  THE    ENFORCEMENT   OF   JUDGMENTS 

conduct  of  such  business.  Again,  even  assuming  that  the  seat  in 
question  constituted  the  judgment  debtor's  working  tools,  it  would, 
under  section  1391  of  the  Code,  be  exempt  only  to  a  sum  not 
exceeding  $250  (Faxon  v.  Mason,  76  Hun,  408);  whereas  the 
debtor's  own  testimony  shows  it  to  be  now  worth  about  $2,000. 
The  third  objection  of  the  debtor  seems  to  concede  that  so  far  as 
seats  in  the  New  York  Stock  and  Cotton  Exchanges  are  concerned, 
they  are  subject  to  the  claims  of  outside,  including  judgment, 
creditors,  and  receiverships  thereof  may  be  ordered;  but  it  further 
asserts  that  by  reason  of  the  different  rules  of  the  Consolidated 
Exchange,  a  seat  in  the  latter  is  not  subject  to  such  claims  or  re- 
ceivership. The  differences  between  the  rules  of  the  said  exchanges, 
and  consequently  the  differences  between  seats  or  memberships 
therein  and  the  effect  of  these  differences  upon  the  merits  of  this 
application,  are  not  presented  to  the  court.  It  has  been  held  that  a 
membership  in  the  New  York  Cotton  Exchange  is  property  which 
passes  to  a  receiver,  who  may  maintain  an  action  to  compel  the 
debtor  to  convey  his  seat  to  the  member  or  to  a  member-elect  with 
whom  the  receiver  may  negotiate  for  its  sale.  Ritterband  v. 
Baggett,  4  Abb.  N.  C.  67;  Powell  v.  Waldron,  89  N.  Y.  328.  The 
Court  of  Appeals,  in  People  ex  rel.  Lemmon  v.  Feitner,  167  N.  Y.  1, 
indicates,  at  page  6,  a  difference  between  the  rules  and  regulations 
of  the  Stock  Exchange  and  those  of  the  Cptton  Exchange.  But  an 
examination  of  these  portions  of  the  judicial  authorities  which 
quote  the  provisions  of  the  constitution  and  by-laws  of  the  Stock 
Exchange  indicates  that,  so  far  as  the  nature  of  the  membership 
and  the  merits  of  this  application  are  concerned,  they  are  very 
similar  to  and  in  many  respects  identical  with  those  of  the  Con- 
solidated Exchange,  which  are  here  referred  to  in  opposition  to 
this  motion.  And  a  membership  in  the  former  exchange  has 
frequently  been  judicially  declared  to  be  property  which  passes  to 
assignees  in  banla-uptcy,  is  subject  to  the  claim  of  creditors,  and  of 
which  a  receiver  may  be  appointed.  Matter  of  Ketchum,  1  Fed. 
Repr.  840;  Hyde  v.  Woods,  4  Otto  (U.  S.)  523,  referring  to  member- 
ship in  the  San  Francisco  Stock  and  Exchange  Board;  Grocers' 
Bank  v.  Murphy,  60  How.  Pr.  426;  Belton  v.  Hatch,  109  N.  Y. 
593;  People  ex  rel.  Lemmon  v.  Feitner,  167  N.  Y.  1,  7.  As  a  final 
answer  to  the  last  objection  of  the  judgment  debtor,  we  have  in  the 
case  of  Roome  v.  Swan,  15  Civ.  Pro.  344,  an  instance  not  only  of  the 
appointment  of  a  receiver  of  a  seat  or  membership  in  the  very 
exchange  of  which  the  judgment  debtor  herein  is  a  member,  viz., 
the  Consolidated  Stock  and  Petroleum  Exchange  of  New  York,  but 


EIKENBERRY    &    CO.    V.    EDWARDS  633 

also  a  statement  of  the  subsequent  procedure  to  make  that  receiver- 
ship effectual.  For  the  above  reasons,  the  motion  for  the  appoint- 
ment of  a  receiver  should  be  and  is  hereby  granted.  As  the  right, 
title  and  interest  of  the  receiver  is  probably  subordinate  to  the 
rights  of  the  creditors  of  the  judgment  debtor  who  are  his  fellow 
members  in  the  exchange,  and  as  the  receiver's  jurisdiction  over 
the  seat  or  membershij)  must  be  subject  to  and  exercised  in  accord- 
ance with  the  rules  and  regulations  of  that  exchange,  the  order  to  be 
presented  should  incorporate  the  practice  suggested  in  Grocers' 
Bank  v.  Murphy,  60  How.  Pr.  426,  and  Roome  v.  Swan,  15  Civ. 
Pro.  344.     Settle  order  on  notice.  Ordered  accordingly.^ 


EIKENBERRY   &   CO.   v.   EDWARDS. 

Supreme  Court  of  Iowa.     1885. 

[Reported  67  Iowa,  619.] 

See  VERS,  J.  The  plaintiffs  recovered  a  judgment  against  the 
defendant,  and  caused  an  execution  to  be  issued  thereon,  which 
was  returned  unsatisfied.  Thereupon  the  plaintiffs  filed  a  petition, 
in  which  it  was  stated  that  the  defendant  had  in  his  possession 
property  which  he  unjustly  refused  to  apply  in  satisfaction  of  the 
execution;  and  an  order  for  the  appearance  and  examination  of  the 
debtor,  as  provided  in  Code,  §  3135,  was  asked.  Such  an  order 
was  made,  and  the  defendant  appeared  in  response  thereto.  An 
examination  was  had,  and  the  fact  disclosed  that  the  defendant  had 
sold  certain  real  estate,  and  received  therefor  promissory  notes 
amounting  to  $18,760,  which,  the  day  after  the  notice  was  served 
requiring  him  to  appear  for  examination,  he  had  sent  to  his  son- 
in-law  in  Colorado.  The  district  court  of  Monroe  county,  in  which 
the  proceeding  was  pending,  made  an  order  requiring  the  defend- 
ant to  turn  over  the  notes  to  the  court,  and  a  receiver  was  apjwinted 
to  receive  and  take  charge  of  said  notes,  and  it  was  further  ordered 
that  they  should  l>e  regarded  as  assets  subject  to  be  sold  on  exe- 

1  Habenicht  v.  Lissak,  78  Cal.  351,  20  Pac.  874,  accord. 

A  seat  in  a  stock  exchange  passes  to  the  member's  trustee  in  bankruptcy. 
Page  V.  Edmunds,  187  U.  S.  596,  47  L.  ed.  318,  23  S.  Ct.  200. 

A  patent  right  is  subject  to  equitable  execution.  Ager  v.  Murray,  105 
U.  S.  126,  26  L.  ed.  942. 

A  perpetual  scholarship  in  a  college  has  been  held  not  to  be  subject  to 
equitable  execution.      Bank  v.  Morrow,  99  Teun.  527,  42  S.  W  200.  —  Ed. 


634  THE    ENFORCEMENT    OF   JUDGMENTS 

cution.  It  was  further  ordered  that,  upon  the  notes  being  so 
turned  over,  they  should  be  subject  to  any  further  order  that  might 
be  made  in  vacation  in  relation  thereto.  The  defendant  failed  to 
deliver  the  notes  as  required  by  the  order,  and  afterwards  he  was,  in 
vacation,  adjudged  by  the  judge  of  said  court  to  be  guilty  of  a 
contempt,  and  ordered  to  be  committed  to  the  jail  of  Wapello 
county  until  he  obeyed  the  order  of  the  court. 

I.  Counsel  for  the  defendant  insist  that  the  defendant  was  not 
guilty  of  a  contempt.  The  proceedings  in  question  were  com- 
menced imder  chapter  3,  title  18,  of  the  Code,  entitled  "  Proceed- 
ings Auxiliary  to  Execution,"  and  section  3145  of  that  chapter 
provides  that  "  if  any  person,  party  or  witness  disobey  an  order  of 
the  court  or  judge  or  referee,  duly  served,  such  person,  party  or  wit- 
ness may  be  punished  as  for  contempt."  The  defendant  certainly 
refused  to  obey  the  order  of  a  court  or  judge.  He  therefore  is 
clearly  guilty  of  a  contempt,  unless  the  facts  adduced  on  the 
examination  will  not  warrant  the  order  made,  or  the  statute  is 
unconstitutional.  We  have  examined  the  record  with  care,  and 
are  of  the  opinion  that,  although  the  notes  were  in  the  actual 
possession  of  another,  yet  they  undoubtedly  were  so  held  for  the 
use  and  benefit  of  the  defendant,  and  were  under  his  control.  The 
order,  therefore,  was  fully  warranted. 

II.  Is  the  statute  unconstitutional  ?  Counsel  for  the  defend- 
ant cite  and  reply  on  Ex  parte  Grace,  12  Iowa,  208.  It  was  held 
in  that  case  that  a  similar  statute  was  unconstitutional,  because  it 
conflicted  with  sections  9  and  10  of  article  1  of  the  constitution, 
which  provide  that  the  right  of  trial  by  jury  shall  remain  inviolate, 
and  that  no  person  shall  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law.  The  only  case  cited  by  counsel  in 
support  of  their  position  is  Ex  parte  Grace.  It  will  therefore  be 
assumed  that  no  adjudged  case  can  be  found  which  accords  there- 
with, and  yet  it  is  true  that  smiilar  statutes  have  been  in  force  in 
several  of  the  states  for  some  years.  Possibly  the  first  state  to 
enact  such  a  statute  was  New  York,  and  we  are  not  advised  that  it 
has  been  declared  unconstitutional,  although  questions  under  it 
have  frequently  been  determined  in  the  inferior  courts  of  that 
state.  In  re  Pester,  2  Code  Rep.,  98;  Sandford  v.  Carr,  2  Abb.  Pr., 
462;  Driggs  v.  Williams,  15  Id.,  477;  Kearney's  Case,  13  Id.,  459; 
Tompkins  Co.  Bank  v.  Trapp,  21  How.  Pr.,  17;  Gould  v.  Torrance, 
19  Id.,  560.  Statutes  substantially  the  same  as  ours  have  been 
held  to  be  constitutional  in  State  v.  Becht,  23  Minn.,  411,  and  In  re 
Burrows,  33  Kan.,  675;  S.  C.  7  Pac.  Rep.,  149. 


EIKENBERRY    &    CO.    V.    EDWARDS  635 

Under  the  chancery  practice  as  it  existed  at  the  time  the  con- 
stitution was  adopted,  a  person  could  be  deprived  of  his  hberty  or 
property,  and  such  deprivation  has  ahvays  been  regarded  as  having 
been  accomplished  by  "  due  process  of  law,"  which  has  been  de- 
fined to  be  "  law  in  its  regular  course  of  administration  through 
courts  of  justice."  Happy  v.  Mosher,  48  N.  Y.,  313;  Mason  v. 
Messenger,  17  Iowa,  261;  Den.,  ex  dem.,  Murray  v.  Hoboken  Land 
etc.  Co.,  18  How.,  272.  In  so  far  as  the  pleadings  are  concerned, 
the  distinction  between  actions  at  law  and  proceedings  in  chancery 
have  been  abolished  by  the  Code,  and  there  is  now  but  one  form 
of  action,  which  pertains  to  both  law  and  chancery.  Under  the 
chancery  practice  as  it  existed  when  the  constitution  was  adopted, 
and  now  under  the  Code,  a  creditor's  bill  could  be  filed,  the  object 
of  which  was  the  discovery  and  subjection  of  property  to  the  pay- 
ment of  a  debt  or  judgment.  Proceedings  auxiliary  to  execution, 
as  provided  in  the  statute,  were  unkno^vn  to  the  common  law;  and 
the  object  to  be  accomplished  thereby,  and  the  manner  of  doing  it, 
are  or  may  be  quite  similar  to  a  creditor's  bill,  and  may  be  well 
regarded  as  affording  an  additional  remedy  for  the  accomplishment 
of  the  same  object.  At  least  it  may  be  said  to  be  a  statutory  pro- 
ceeding not  in  accord  with  the  cormnon  law,  but  more  nearly  like  a 
proceeding  m  chancery,  and  should,  under  the  Code,  be  classed  as  a 
special  proceeding,  and  tried  as  an  ordinary  action  at  law  or  pro- 
ceeding in  chancery,  and  the  mode  of  trial  will  be  determined  by 
assigning  the  proceeding  to  whichever  class  it  appropriately 
belongs.  Sisters  of  Visitation  v.  Glass,  45  Iowa,  154.  The  statute 
contemplates  a  trial  before  a  court,  judge  or  referee;  and  such 
always  has  been  the  mode  of  trial  in  chancery  cases.  Witnesses 
may  be  examined,  and  the  rights  of  the  parties  as  fully  protected 
as  in  an}'  other  proceeding  in  chancery.  The  defendant,  therefore, 
was  not  deprived  of  his  liberty  or  property  without  due  process  of 
law,  and  therefore  the  statute  is  not  unconstitutional. 

There  is  a  material  difference  between  the  present  statute  and 
that  in  force  when  Ex  parte  Grace  was  determined.  Under  the 
present  statute  the  order  for  the  appearance  of  the  supposed 
debtor  can  only  be  made  by  the  district  or  circuit  court,  or  a  judge 
thereof,  and  the  examination  must  be  had  before  one  of  such  courts 
or  judges,  or  before  a  referee.  Such  courts  have  full  and  complete 
jurisdiction  of  actions  at  law  and  proceedings  in  chancer}-.  They 
may  impanel  juries  before  whom  issues  may  be  tried.  The  judges 
of  said  courts  have  all  the  powers  possessed  by  judges  of  courts  of 
general  jurisdiction,  and  the  statute  under  consideration  cannot  be 


636  THE    ENFORCEMENT    OF   JUDGMENTS 

said  to  be  unconstitutional  because  the  order  for  the  appearance 
and  examination  may  be  made  by  a  judge;  nor  can  it  be  so  said 
because  the  examination  is  had  before  the  judge,  unless  the  defend- 
ant asks  to  have  it  before  the  court;  for,  if  such  is  his  constitutional 
right,  it  is  clear  that  such  right  may  be  waived.  The  statute  in 
force  when  Ex  parte  Grace  was  determined  provided  that  the  order 
for  and  examination  of  the  debtor  could  be  made  by  the  county 
court,  or  judge  thereof,  and  the  examination  had  before  such  court 
or  judge.  Such  court  was  not  a  court  of  general  jurisdiction.  It 
had  no  power  to  try  actions  at  law  or  proceedings  in  chancery.  Its 
jurisdiction  was  limited  and  defined  by  statute.  The  court  in 
Ex  parte  Grace  laid  some  stress  on  the  character  and  powers  of  the 
court  before  whom  the  proceeding  was  had,  and  the  decision  of 
this  court  in  that  case  may  be  sustained  because  the  court  and 
judge  thereof  did  not  have  the  power  to  impanel  a  jury,  and  was 
not  vested  with  the  power  and  jurisdiction  to  try  issues  in  actions 
at  law  or  proceedings  in  chancery. 

III.  The  Code  commissioners  recommended  that  the  general 
assembly  should  amend  the  statute  under  consideration  in  the 
Revision,  by  striking  out  the  words  "  county  court,  or  judge 
thereof,"  and  providing  that  the  order  for  the  examination  of  the 
debtor  should  be  issued  by  the  district  or  circuit  court,  or  a  judge 
thereof,  and  that  all  the  subsequent  proceedings  should  be  had 
before  such  court  or  judge.  The  recommendation  was  adopted, 
and  the  statute  re-enacted,  and  it  exists  now  in  other  respects  in 
substantially  the  same  form  as  it  did  when  Ex  parte  Grace  was 
determined.  In  addition  to  the  foregoing,  the  Code  commis- 
sioners recommended  the  enactment  of  certain  provisions  which  it 
may  be  supposed  would,  in  their  opinion,  clearly  make  the  statute 
both  constitutional  and  effective.  These  last  provisions  the 
general  assembly  failed  to  adopt,  and  it  is  therefore  insisted,  in 
substance,  that  it  was  the  legislative  intent  that  no  change  should 
be  made  to  obviate  the  construction  adopted  by  this  court.  But 
we  think  this  conclusion  should  not  be  entertained.  The  statute 
as  it  had  existed  and  had  been  construed,  failed  to  accomplish  the 
results  intended  by  its  enactment.  It  htul  become  practically 
obsolete.  In  view  of  the  change  made,  and  the  re-enactment  of 
the  statute,  it  may  well  be  supposc^l  that  the  legislative  thought 
was  that  the  construction  which  had  obtained  had  been  obviated. 
For  the  reasons  stated,  the  orders  and  proceedings  before  the  dis- 
trict court  and  judge  thereof  must  be 

Affirmed. 


EIKENBERRY    &    CO.    V.    EDWARDS  637 

Beck,  Ch.  J.,  dissenting.  The  statute  under  which  the  proceed- 
ings in  this  case  were  had  are  the  sections  of  the  Code  which  are 
here  set  out: 

"  Sec.  3135.  When  execution  against  the  property  of  a  judg- 
ment debtor,  or  one  of  several  debtors  in  the  same  judgment,  has 
been  issued  from  the  district,  circuit  or  supreme  court  to  the  sheriff 
of  the  county  where  such  debtor  resides;  or,  if  he  do  not  reside  in 
the  state,  to  the  sheriff  of  the  county  where  the  judgment  was 
rendered;  or  a  transcript  of  a  justice's  judgment  has  been  filed,  and 
execution  thereon  is  returned  unsatisfied  in  whole  or  in  part,  —  the 
owner  of  the  judgment  is  entitled  to  an  order  for  the  appearance  and 
examination  of  such  debtor. 

"  Sec.  3137.  Such  order  may  be  made  by  the  district  or  cir- 
cuit court  of  the  county  m  which  the  judgment  was  rendered,  or 
to  which  execution  has  been  issued,  or,  in  vacation,  by  a  judge 
thereof;  and  the  debtor  may  be  required  to  appear  and  answer 
before  either  of  such  courts  or  judges,  or  before  a  referee  appointed 
for  that  purpose  by  the  court  or  judge  who  issued  the  order,  to 
report  either  the  evidence  or  the  facts. 

"  Sec.  3140.  If  any  property,  rights  or  credits  subject  to 
execution  are  thus  ascertained,  an  execution  may  be  issued,  and 
they  may  be  levied  upon  accordingly.  The  court  or  judge  may 
order  any  property  of  the  judgment  debtor  not  exempt  by  law,  in 
the  hands  either  of  himself  or  any  other  person  or  corporation,  or 
due  to  the  judgment  debtor,  to  be  delivered  up,  or  in  any  other 
mode  applied  towards  the  satisfaction  of  the  judgment. 

"  Sec.  3141.  The  court  or  judge  may  also,  by  order,  appoint 
the  sheriff  of  the  proper  county,  or  other  suitable  person,  a  receiver 
of  the  property  of  the  judgment  debtor,  and  may  also,  by  order, 
forbid  a  transfer  or  other  disposition  of  the  property  of  the  judg- 
ment debtor,  not  exempt  by  law,  or  may  forbid  any  interference 
therewith. 

"  Sec.  3145.  Should  the  judgment  debtor  fail  to  appear,  after 
being  personally  served  with  notice  to  that  effect,  or  should  he  fail 
to  make  full  answers  to  all  proper  interrogatories  thus  propounded 
to  him,  he  will  be  guilty  of  contempt,  and  may  be  arrested  and 
imprisoned  mitil  he  complies  with  the  requirements  of  the  law  in 
this  respect.  Aiid  if  any  person,  party  or  witness  disobey  an  order 
of  the  court  or  judge  or  referee,  duly  served,  such  person,  party  or 
witness  may  be  punished  as  for  contempt." 

The  statute  authorizes  the  district  and  circuit  courts,  or  the 
judges  thereof,  to  require  a  defendant  in  execution  to  submit  to  an 


638  THE    ENFORCEMENT    OF   JUDGMENTS 

examination  under  oath  (Code,  §  3138)  as  to  the  property  he 
owns  and  its  disposition.  Witnesses  may  be  required  to  appear 
and  testify  in  the  proceedings.  Code,  §  3139.  The  court  or 
judge  may,  upon  such  proceedings,  order  the  defendant  to  sur- 
render any  property,  found  to  belong  to  him,  to  the  court,  which 
shall  be  held  by  the  receiver.  If  the  order  be  disobeyed,  the  de- 
fendant may  be  committed  as  for  a  contempt,  and  be  subjected  to 
imprisomnent  until  he  obeys  the  order.  The  effect  of  the  provision 
is  to  authorize  a  summary  proceeding  wherein  the  defendant  may 
be  deprived  of  his  liberty. 

The  constitution  of  the  state  (article  1,  §  9)  declares  that  ''  no 
person  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law."  The  term  "  due  process  of  law  "  means  the 
ordinary  judicial  proceedings  recognized  by  law,  and  provided  for 
determining  the  rights  of  property  and  for  subjecting  the  citizen  to 
deprivation  of  his  liberty  for  violation  of  the  law.  Boyd  v.  Ellis, 
11  Iowa,  97;  Ex  parte  Grace,  12  lowa^  208;  Stewart  v.  Board 
Sup'rs,  30  Id.,  9.  No  man  may  be  deprived  of  his  property  or 
liberty  under  this  constitutional  provision  except  upon  a  judicial 
determination  obtamed  in  the  manner  prescribed  by  law  for  pro- 
ceedings in  the  courts.  There  must  be  an  adjudication  had  in  such 
proceedings  in  order  to  deprive  the  citizen  of  his  liberty  or  property. 
The  proceedings  authorized  by  the  statute  quoted  above  are  sum- 
mary in  their  nature.  They  do  not  accord  with  the  ordinary 
course  pursued  in  judicial  proceedings.  The  pivotal  questions  in 
the  case,  —  namely,  whether  defendant  owned  property,  whether 
he  fraudulently  disposed  of  it,  whether  it  was  under  his  control  so 
that  he  could  surrender  it,  and  whether  he  fraudulently  put  it  out 
of  his  control,  — ■  were  not  determined  in  the  maimer  prescribed  for 
the  decision  of  such  questions  when  the  rights  of  property  depend 
thereon.  They  were  decided  in  a  summary  proceeding,  and  not  in 
a  case  wherein  the  usual  course  of  the  law  was  pursued.  The  dif- 
ference between  this  summary  proceeding  and  an  ordinary  action 
at  law  or  in  chancery  need  not  be  suggested  to  the  legal  mind. 
They  are  many,  and  essential  to  the  just  administration  of  the  law. 

It  is  true  that  a  commitment  for  contempt  may  be  made  in  a 
summary  manner;  but  it  can  only  be  made  when  based  upon  a 
prior  adjudication  of  the  matter  which  is  the  foundation  of  the  con- 
tempt. For  a  disobedience  of  a  lawful  order  of  a  court,  an  offender 
may  l^e  committed  as  for  a  contempt.  But  the  order  disobeyed, 
to  make  the  commitment  lawful,  must  have  been  rendered  in  the 
exercise  of  lawful  jurisdiction.     An  order  not  made  in  a  cause  pend- 


ABBOTT   V.    OSGOOD  639 

ing,  or,  if  in  such  cause,  not  in  accord  with  the  essential  proceedings 
prescribed  by  law,  will  not  support  a  commitment  for  contempt. 
So,  for  contemptuous  acts  done  in  the  presence  of  a  court,  the  fact 
of  such  acts  must  be  lawfully  found  and  adjudicated  by  the  court 
before  the  order  of  commitment  can  be  made.  Such  adjudication 
must  be  made  in  the  manner  recognized  by  statute  or  the  long- 
continued  practice  of  the  courts.  But  for  contempts  not  com- 
mitted in  the  presence  of  the  court,  the  order  disobeyed  must  have 
been  made  in  proceedings  which  are  recognized  as  being  of  the 
"  due  process  of  law."  I  reach  the  conclusion  that  the  statute 
above  quoted,  authorizing  the  proceedings  in  this  case,  is  in  con- 
flict with  the  constitution.  These  views  are  in  accord  with  and 
supported  by  Ex  parte  Grace,  12  Iowa,  208.  See,  also  State  v. 
Start,  7  Id.,  501. 

It  is  my  opinion  that  the  order  committing  the  defendant  should 
be  set  aside  and  held  for  naught,  and  that  a  judgment  to  that  effect 
should  be  entered  here,  and  certified  to  the  judge  of  the  second 
judicial  district. 

Adams,  J.,  concurs  in  this  dissent. 


ABBOTT  V.   OSGOOD. 
Supreme  Judicial  Court  of  New  Hampshire.     1859. 
[Reported  38  New  Hampshire,  2S0.] 

Debt,  upon  a  judgment  rendered  in  the  Court  of  Common  Pleas 
for  this  county,  March  term,  1857. 

The  defendant  pleaded  that  an  execution  had  issued  upon  said 
judgment,  and  thereupon  the  defendant  had  been  arrested  and 
committed  to  jail,  and  that  afterward  the  plaintiffs  voluntarily 
discharged  the  defendant  from  confinement,  and  he  was  suffered 
to  go  at  large. 

The  plaintiffs  replied  to  this,  that  said  discharge,  and  suffering 
the  defendant  to  go  at  large,  were  on  the  express  condition  that  the 
debt  and  judgment  aforesaid  should  not  be  discharged. 

To  this  replication  the  defendant  demurred,  and  the  plaintiffs 
joined  in  the  demurrer. 

Fowler,  J.  It  is  admitted  by  the  demurrer  in  this  case,  that 
the  defendant  was  discharged  b}'  the  plaintiffs  from  imprisonment 
on  an  execution  issued  upon  the  judgment  now^  in  suit,  upon  the 
express  condition  that  the  debt  in  said  judgment  and  the  judgment 
itself  should  not  thereby  be  discharged.      The  plaintiffs  contend, 


640  THE    ENFORCEMENT   OF   JUDGMENTS 

that,  at  common  law,  a  discharge  under  such  circumstances  would 
not  invalidate  the  debt  or  judgment,  and  have  referred  us  to  the 
cases  of  Vigers  v.  Aldrich,  4  Burr.  2482,  and  Little  v.  Newburyport 
Bank,  14  Mass.  443,  as  sustaining  their  position.  An  examination 
of  these  cases  has  failed  to  satisfy  us  of  its  correctness.^  .  .  . 

Upon  the  whole,  therefore,  we  entertain  no  doubt  that,  at  com- 
mon law,  the  discharge  of  a  debtor  from  imprisoimaent  upon 
execution,  by  consent  of  the  creditor,  unless  obtained  by  fraud  or 
force,  was  in  law  a  satisfaction  of  the  debt  and  judgment,  so  that  no 
action  could  afterwards  be  maintained  upon  the  judgment  for  the 
recovery  of  the  debt. 

But  the  plaintiffs  further  rely  upon  the  express  provisions  of  the 
Revised  Statutes,  to  enable  them  to  maintain  their  action,  not- 
withstanding the  established  rule  of  the  common  law;  and  we 
think  rightly.  The  eleventh  section  of  the  185th  chapter  of  those 
statutes  is  as  follows: 

"Sec.  11.  No  such  discharge"  [that  is,  a  discharge  by  two 
justices  of  the  peace,  one  of  whom  is  of  the  quorum,  or  by  the  court, 
at  the  return  day  of  a  writ  or  execution,  as  provided  for  in  the  two 
preceding  sections],  "  nor  any  discharge  of  any  person  arrested  or 
imprisoned  on  execution,  shall  discharge  the  debt  or  judgment 
upon  which  the  execution  issued." 

This  is  clearly  a  direct  and  positive  enactment,  designed  and 
intended  to  abolish  and  change  the  common  law  rule  in  such  cases, 
and  it  seems  to  us  most  effectually  accomplishing  that  purpose. 
It  is  difficult  to  conceive  what  language  more  explicit  could  have 
been  employed  to  effect  such  a  result.  It  is,  as  it  were,  expressly 
and  definitely  enacted  that  after  the  passage  of  that  act,  the  com- 
mon law  rule  which  had  previously  existed  in  regard  to  discharges 
by  consent  of  the  creditor,  should  no  longer  prevail,  Ijut  that 
thereafterwards  no  discharge  of  any  person  arrested  or  imprisoned 
on  execution,  whether  obtained  by  consent  of  the  creditor  or  other- 
wise, should  operate  to  discharge  the  debt  or  judgment  upon  which 
the  execution  issued.  .  ,  .  Judgment  for  the  plaintiffs} 

1  The  learned  judge  here  discussed  the  cases  of  Vigers  v.  Aldrich,  4  Burr. 
2482;  Little  v.  Newburyport  Bank,  14  Mass.  443;  Jaques  v.  Withy,  1  D.  &  E. 
552;  Clarke  v.  Clement  &  English,  6  D.  &  E.  525;  Bassett  v.  Salter,  2  Mod. 
136;  Thompson  v.  Bristow,  Barnes'  Notes,  205;  Tanner  v.  Hague,  7  D.  &  E. 
420;  Da  Coster  v.  Davis,  1  B.  &  P.  242;  Perldns  v.  Pettit  &  Yale,  2  B.  &  P. 
440;   Blackburn  v.  Stupart,  2  East,  243.  —  Ed. 

2  As  to  execution  against  the  person,  see  3  Freeman,  Executions,  3d  ed., 
Chap.  XXXIII.  —  Ed. 


CHAPTER  XIII. 

THE   EFFECT   OF  A  JUDGMENT   ON   SUBSEQUENT 
CONTROVERSIES. 

HOFFMEIER  and  HOFFMEIER,  Trading,  &c.,  as 
C.   C.   HOFFMEIER  &   SON,   v.   TROST. 

Supreme  Court  of  New  Jersey.     1912. 

[Reported  83  New  Jersey  Law,  358.] 

Trenchard,  J.  This  suit  was  brought  in  the  District  Court  to 
recover  $475  claimed  to  be  due  the  plaintiffs  below  under  a  stop 
notice  given  pursuant  to  section  3  of  the  Mechanics'  Lien  act 
(Comp.  Stat.,  p.  3294),  and  was  tried  before  the  judge  without  a 
jury. 

On  March  5th,  1910,  the  defendant  entered  into  a  written  con- 
tract with  one  Waldons  for  the  construction  of  a  building.  The 
contract  was  filed  in  the  county  clerk's  office.  On  March  18th, 
1910,  Waldons  entered  into  a  subcontract  with  the  plaintiffs  for 
the  plumbing  and  heating  work.  There  became  due  the  plaintiffs 
on  such  subcontract  the  sum  of  $1,375.  After  demand  upon  Wal- 
dons, and  his  refusal  to  pay,  the  plaintiffs,  on  October  10th,  1910, 
served  a  notice  in  writing  on  the  defendant,  as  owner,  of  the  amount 
due  them,  and  for  the  retention  thereof,  under  section  3  of  the 
Mechanics'  Lien  act  (Comp.  Stat.,  p.  3294),  from  any  moneys  due 
to  Waldons  from  the  defendant.  On  December  17th,  1910,  the 
defendant  paid  the  plaintiffs  $900,  on  account  of  their  claim,  leaving 
a  balance  of  $475,  for  which  this  suit  is  brought. 

The  trial  judge  gave  judgment  for  the  defendant  up.on  the 
ground  that  the  matter  was  res  adjudicata. 

We  think  that  action  erroneous. 

It  is  true  it  appeared  at  the  trial  that  the  plaintiffs  had  pre- 
viously brought  suit  in  another  District  Court,  based  upon  a 
contract  alleged  to  have  been  made  on  July  29th,  1910,  to  pay  for 
the  same  labor  and  materials,  and  that  judgment  in  that  suit  was 
rendered  for  the  defendant. 

But  a  matter  is  not  res  adjudicata  unless  there  be  identity  of  the 
thing  sued  for,  of  the  cause  of  action,  of  the  persons  and  parties, 

641 


642         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

the  quality  of  the  persons  for  and  against  whom  the  claim  is  made, 
and  tlie  judgment  in  the  former  action  be  so  in  point  as  to  control 
the  issue  in  the  pending  one.     Mershon  v.  Williams,  34  Vroom  398. 

A  proper  test  in  determining  whether  a  prior  judgment  between 
the  same  parties  concerning  the  same  matters  is  a  bar  to  a  sub- 
sequent action  is  to  ascertain  whether  the  same  evidence,  which  is 
necessary  to  sustain  the  second  action,  would  have  been  sufficient 
to  authorize  a  recovery  in  the  first;  if  so,  the  prior  judgment  is  a 
bar.  But  if  the  evidence  offered  in  the  second  suit  is  sufficient  to 
authorize  a  recovery,  but  could  not  have  produced  a  different 
result  in  the  first  suit,  the  failure  of  the  plaintiff  in  the  first  suit  is 
no  bar  to  his  recovery  in  the  other  suit.     23  Cyc.  1158. 

Applying  that  test  to  the  case  in  hand,  it  is  plain  that  the  former 
judgment  for  the  defendant  is  not  a  bar.  As  we  have  pointed  out, 
that  suit  appears  to  have  been  based  upon  a  contract  alleged  to 
have  been  made  on  Jidy  29th,  1910,  to  pay  for  the  labor  and 
materials  bestowed  upon  the  building.  That  alleged  contract  had 
no  relation  to  any  rights  which  may  have  accrued  to  the  plaintiffs 
under  the  Mechanics'  Lien  act.  In  the  present  action  recovery  is 
sought  by  reason  of  a  stop  notice  given  under  the  Mechanics'  Lien 
act,  not  under  the  alleged  contract  upon  which  the  first  suit  was 
based.  Obviously,  the  proofs  which  justified  (nothing  else  appear- 
ing) a  recovery  by  force  of  section  3  of  the  Mechamcs'  Lien  act 
would  not  have  authorized  a  recovery  for  the  plaintiffs  in  the  first 
suit. 

It  follows,  therefore,  that  the  judgment  under  review  cannot  be 
sustained  upon  the  ground  stated  by  the  trial  judge. 

Nor  does  the  record  disclose  any  other  ground  upon  which  it  can 
be  sustained. 

Whether  the  plaintiffs  may  recover  on  a  new  trial  will,  it  seems 
likely,  depend  upon  a  proper  determination  of  several  questions, 
among  others,  the  question  of  blended  law  and  fact  respecting 
whether  the  plaintiffs,  as  is  contended,  made  a  valid  agreement  on 
December  17th,  1910,  to  prorate  their  claim,  and,  if  they  did,  its 
effect  upon  their  claim. 

The  judgment  below  will  be  reversed  and  a  new  trial  awarded.^ 

1  Newhall  v.  Enterprise  Mining  Co.,  205  Mass.  585,  91  N.  E.  905,  137  Am. 
St.  Rep.  461,  accord.  —  Ed. 


OIL   WELL    SUPPLY    CO.    V.  KOEN  643 

SANDERS  V.   HAMILTON. 

King's  Bench  Division.     1907. 

[Reported  96  Law  Times  Reports,  679.] 

Darling,  J.^  In  this  case  it  appears  that  the  plaintiff  brought  an 
action  in  detinue,  and  he  claimed  14  I.  as  the  value  of  the  goods 
detained,  and  a  further  sum  as  damages  for  their  detention.  The 
defendant  paid  the  whole  amount  claimed  into  court.  I  am  not 
going  into  what  happened  on  the  interlocutory  proceedings,  but  the 
money  paid  in  was  taken  out  by  the  plaintiff.  The  latter  then 
brought  another  action  for  the  same  detinue  of  the  same  goods, 
putting  their  value  at  a  higher  figure  than  in  the  previous  action, 
and  giving  credit  for  the  amount  he  had  already  received.  He 
claimed  the  right  to  maintain  this  action  to  recover  further  dam- 
ages for  the  same  cause  of  action,  on  the  ground  that  in  making  his 
first  claim  he  had  underestimated  the  value  of  the  goods  detained. 
The  learned  judge  has  decided  that  this  action  is  maintainable 
because  he  feels  himself  bound  by  the  decision  in  the  case  of  Dewar 
V.  Winder  [12  Times  L.  Rep.  54].  I  think  the  ordinary  law  on 
this  subject  is  contained  in  the  maxim  Nemo  debit  his  vexari  and  also 
in  the  maxim  that  when  once  a  matter  is  res  judicata  that  prevents 
another  action  being  brought  for  the  same  cause.  I  do  not  think 
that  the  case  of  Dewar  v.  Winder  is  really  an  authority  the  other 
way.  If  so  it  is  the  only  authority  to  be  found  in  the  books  for 
the  proposition  that  a  subsequent  action  may  be  brought  for  the 
same  cause  of  action,  if  the  damages  claimed  in  the  first  action 
are,  by  mistake  insufficient.  There  are  many  authorities  to  the 
contrary.2  .  .  . 

OIL  WELL  SUPPLY  COMPANY  v.   KOEN  et  al 

Supreme  Court  of  Ohio.     1901. 

[Reported  64  Ohio  State,  422.] 

Error  to  the  Circuit  Court  of  Monroe  county. 

Action  on  account  for  goods  sold.  Plea  of  former  recovery. 
Reply  that  the  judgment  was  against  a  non-resident  of  the  state, 
on  constructive  service  only.  Demurrer  to  reply  sustained,  and 
action  dismissed.     Reversed. 

1  Only  a  part  of  the  opinion  of  Darling,  J.,  is  here  given.  —  Ed. 

2  See  Ewing  v.  McNairy,  20  Oh.  St.  315.  (But  see  Ohio  Gen.  Code,  sec. 
11642.)  Compare  Nebraska  Loan  &  Trust  Co.  v.  Domon,  4  Neb.  (Unof.),  334. 
—  Ed. 


644         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

The  action  below  was  brought  in  the  court  of  common  pleas  of 
Monroe  county,  by  the  Oil  Well  Supply  Company  against  O.  N. 
Koen  and  Charles  Barrows,  on  an  account  for  merchandise  sold 
and  delivered  by  the  plaintiff  to  the  defendants,  amounting  to  the 
sum  of  $1,574.51.  The  defendant  Koen  alone  answered,  pleading 
in  bar  of  the  action,  a  former  recovery  on  the  same  cause  of  action, 
in  the  court  of  common  pleas  of  Washington  county.  The  plaintiff 
replied  that,  when  the  former  action  was  brought,  the  defendant 
Koen  was  a  non-resident  of  this  state,  and  on  that  ground  a  writ  of 
attachment  was  issued  in  the  action,  under  which  certain  chattel 
property  of  the  defendent  then  in  the  jurisdiction  of  the  court  was 
attached,  and  afterward  sold,  and  the  proceeds,  amounting  to  the 
sum  of  S714,  was  applied,  by  order  of  the  court,  on  the  costs, 
which  amounted  to  $49.50,  and  the  balance  of  $664.50  was  paid  on 
the  plaintiff's  claim;  which  last  amount  the  plaintiff  admits  should 
be  crecUted  on  the  account  sued  on  in  this  case.  The  reply  also 
avers  that  "  no  summons  was  served  on  the  defendant  in  said 
action,  nor  did  he  appear  therein,  nor  was  jurisdiction  over  the 
person  of  said  defendant  other^vise  acquired  therein  ";  but,  "  ser- 
vice by  publication  of  notice  to  said  defendant  was  duly  made 
according  to  law,  under  clause  3,  of  section  5048,  of  the  Revised 
Statutes."  A  general  demurrer  was  sustained  to  the  reply,  the 
petition  dismissed,  and  judgment  rendered  against  the  plaintiff  for 
costs;  and  from  the  affirmance  of  that  judgment  by  the  circuit 
court,  error  is  prosecuted  to  this  court.   .    .    . 

Williams,  J.^  If  the  court  in  Washington  county  had  jurisdic- 
tion to  render  the  judgment  set  up  in  the  answer,  this  action 
obviously  camiot  be  maintained.  It  is  fundamental  that  a  valid 
judgment  rendered  on  a  demand  establishes  it  in  the  most  authentic 
form  known  to  the  law,  and  the  demand  so  merged  in  the  judgment 
cannot  be  made  the  basis  of  another  action  between  the  same 
parties;  thereafter  the  judgment  is  a  new  debt  of  a  higher  nature 
which  may  itself  be  the  foundation  of  an  action.  But  it  is  equally 
clear  that  the  judgment,  to  have  that  effect,  must  be  one  rendered 
by  a  court  having  jurisdiction  of  the  parties,  as  well  as  of  the  sub- 
ject matter;  and  if  the  court  was  without  such  jurisdiction,  its 
judgment  is  as  unavailing  as  a  defense  to  a  suit  on  the  original 
demand,  as  it  would  be  in  support  of  an  action  founded  on  the 
judgment.  The  demurrer  to  the  reply  admits  that  in  the  former 
action  no  summons  was  served  on  the  defendant,  who,  during  its 
pendency,  was  a  non-resident  of  this  state,  and  that  no  jurisdiction 

1  A  part  of  the  opinion  is  omitted.  —  Ep. 


BRUNSDEN   V.    HUMPHREY  645 

was  obtained  by  the  court  othenvise  than  by  the  seizure  of  his 
property  on  the  attachment,  and  service  by  publication  as  author- 
ized in  such  cases.  JuriscUction,  upon  such  service,  to  subject 
property  within  the  reach  of  the  court's  process  to  the  satisfaction 
of  the  debts  of  its  non-resident  owner,  is  not  questioned,  nor  is  the 
power  of  the  state  to  confer  such  juriscUction  on  its  courts.  But  a 
proceeding  of  that  nature  is  essentially  one  in  rem,  and  the  juris- 
diction is  acquired  only  where  property  of  the  defendant  is  brought 
^^'ithin  the  control  of  the  court,  and  is  exhausted  by  the  appropria- 
tion of  the  property  on  the  plaintiff's  demand.  The  judgment 
rendered  as  the  basis  for  the  distribution  of  the  attached  property 
to  its  payment  A\'ill  not  support  an  execution  against  other  property 
of  the  defendant  for  the  collection  of  any  balance  then  remaining 
unpaid.  There  is  an  entire  lack  of  power  in  the  court  to  render  a 
valid  judgment  in  personam  against  a  resident  of  another  state, 
who  has  neither  been  simimoned  nor  voluntarily  entered  his  appear- 
ance. Constructive  service  has  no  further  effect  than  to  give 
regularity  to  the  proceedings  for  the  proper  application  of  the 
attached  property.  .  .  . 

We  are  thus  brought  to  the  conclusion  that,  upon  the  facts 
appearing  in  the  pleacUngs,  the  balance  remaining  unpaid  on  the 
plaintiff's  claim  after  the  application  of  the  proceeds  of  the  prop- 
erty attached  in  the  Washington  county  case,  was  not  merged  in 
the  judgment  therein  rendered,  and  that  judgment  is  not  a  bar  to 
the  present  action.  Judgment  reversed.^ 

MiNSHALL,  C.  J.,  BuRKET,  Spear,  Davis  and  Shauck,  JJ., 
concur. 

BRUNSDEN   v.   HUMPHREY. 

Court  of  Appeal.     1884. 

[Reported  14  Queen's  Bench  Division,  141.] 

Appeal  of  the  plaintiff  against  an  order  of  the  Queen's  Bench 
Division  making  absolute  a  rule  to  enter  judgment  for  the  defen- 
dant. The  facts  are  set  out  in  the  report  of  the  proceedings  before 
the  Queen's  Bench  Division  and  also  are  briefly  noticed  in  the 
judgments  of  Brett,  M.  R.,  and  Bowen,  L.  J.,  and  it  will  be  here 
sufficient  to  state  that  the  plaintiff,  whilst  he  was  driving  his  cab, 

1  Compare  Melhop  &  Kingman  v.  Doane  &  Co.,  31  la.  397;  Whittier  v. 
Wendell,  7  N.  H.  2.57;  National  Bank  v.  Peabody  &  Co.,  55  Vt.  492,  in  which 
the  prior  judgment  was  rendered  in  another  state.  —  Ed. 


G46         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

came  into  collision  with  a  van  of  the  defendant  through  the  negli- 
gence of  the  defendant's  servant,  whereby  he  sustained  bodily- 
injury  and  his  cab  was  damaged,  and  that  the  plaintiff,  before  the 
present  action,  sued  the  defendant  for  damage  to  his  cab  in  a 
county  court,  and  the  defendant  paid  into  court  a  small  sum  which 
was  accepted,  and  thereupon  the  action  in  the  county  court  was 
discontinued.  Upon  these  facts  the  Queen's  Bench  Division 
entered  judgment  for  the  defendant  (11  Q.  B.  D.  712). 

Brett,  M.  R.^  This  case  was  heard  before  Pollock,  B.,  and 
Lopes,  J.  The  plaintiff  was  a  cabman  driving  in  his  vehicle,  when 
he  was  run  into  by  the  defendant's  vehicle.  The  collision  was 
caused  by  the  negligence  of  the  defendant's  servant.  In  the  case  in 
which  the  present  appeal  is  brought,  the  plaintiff  has  sued  the  de- 
fendant for  injury  done  to  his  person.  The  jury  have  found  a  ver- 
dict for  £350,  shewing  clearly  that  the  personal  injuries  were  serious. 
Before  this  the  plaintiff  had  brought  an  action  in  the  county  court 
for  damage  to  his  cab,  by  which  he  recovered  a  certain  amount. 
In  this  second  action  it  was  urged  that  the  plaintiff  could  not 
succeed,  because  no  person  can  sue  twice  for  one  and  the  same 
cause  of  action.  On  the  other  side  it  was  contended  that  there  were 
two  distinct  causes  of  action,  and  that  there  was  no  law  to  prevent 
two  actions:  that  it  might  be  sometimes  oppressive  to  bring  two 
actions,  but  that  in  that  event  the  Court  might  smnmarily  stay 
one  of  them,  and  that  in  the  present  case  the  two  actions  were  not 
oppressive.  The  question  is  whether  there  are  two  causes  of 
action,  or  whether  there  is  only  one;  and  if  there  is  but  one  cause 
of  action,  the  present  suit  is  not  maintainable.  For  the  defendant, 
reliance  has  in  effect  been  placed  upon  the  maxim,  Interest  rei- 
publicce  ut  sit  finis  litium;  and  it  has  been  contended  that  it 
enunciates  an  acknirable  rule  of  law.  When  that  rule  is  applied  to 
damages  which  are  patent,  it  is  a  good  rule ;  but  where  damages  are 
afterwards  developed,  it  is  not  a  rule  to  be  commended.  It  is  a 
rule  which  sometimes  produces  a  harsh  result,  and  if  it  were  now 
for  the  first  time  put  forward,  I  could  not  assent  to  its  being  pushed 
to  the  length  to  which  it  has  sometimes  been  carried:  in  fact  it  is 
never  wanted  except  when  injury,  undeveloped  at  the  time  of 
action  brought,  is  afterwards  developed.  However,  the  maxim 
exists,  and  it  must  receive  a  proper  application.  But,  in  order  to 
apply  it,  we  must  often  suppose  what  is  not  the  case.  It  is  to  be 
assumed  that  the  subsequent  damage  was  in  the  contemplation  of 
the  person  injured.     The  question,  however,  remains  whether  the 

1  The  concurring  opinion  of  Bowen,  L.  J.,  is  omitted.  —  Ed. 


BRUNSDEX    V.    HUMPHREY  647 

cause  of  action  is  the  same.  In  this  case  the  injury  was  occasioned 
by  the  neghgent  driving  of  the  defendant's  servant.  Suppose  that 
by  the  negligent  driving  of  the  defendant's  servant  the  van  had  run 
against  the  plaintiff's  cab,  and  had  injured  him  ^\dthout  doing  any 
damage  to  the  cab:  an  action  would  have  lain,  and  any  apparent 
bodily  injury  which  the  plaintiff  might  liave  sustained  would  be  a 
cause  of  action.  Suppose  that  the  defendant's  servant  by  his 
negligent  ch'iving  had  damaged  the  plaintiff's  cab  without  injuring 
hun  personally:  under  circumstances  of  that  kind  the  cause  of 
action  would  be  a  damage  to  the  plaintiff's  property.  The  owner 
of  property  has  a  right  to  have  it  kept  free  from  damage.  The 
plaintiff  has  brought  the  present  action  on  the  ground  that  he  has 
been  injured  in  his  person.  He  has  the  right  to  be  unmolested  in  all 
his  bodily  powers.  The  collision  ^\dth  the  defendant's  van  did  not 
give  rise  to  only  one  cause  of  action :  the  plaintiff  sustained  bodily 
injuries  in  a  distinct  right,  and  he  became  entitled  to  sue  for  a 
cause  of  action  chstinet  from  the  cause  of  action  in  respect  of  the 
damage  to  his  goods :  therefore  the  plaintiff  is  at  liberty  to  maintain 
the  present  action.  Different  tests  have  been  applied  for  the  pur- 
pose of  ascertaining  whether  the  judgment  recovered  in  one  action 
is  a  bar  to  a  subsequent  action.  I  do  not  decide  this  case  on  the 
ground  of  any  test  which  may  be  considered  applicable  to  it;  but 
I  may  mention  one  of  them;  it  is  whether  the  same  sort  of  evidence 
would  prove  the  plaintiff's  case  in  the  two  actions.  Apply  that 
test  to  the  present  case.  In  the  action  brought  in  the  county 
court,  in  order  to  support  the  plaintiff's  case,  it  would  be  necessary 
to  give  evidence  of  the  damage  done  to  the  plaintiff's  vehicle.  In 
the  present  action  it  would  be  necessary  to  give  evidence  of  the 
bodily  injury  occasioned  to  the  plaintiff,  and  of  the  sufferings 
which  he  has  undergone,  and  for  this  purpose  to  call  medical 
witnesses.  This  one  test  shews  that  the  causes  of  action  as  to  the 
damage  done  to  the  plaintiff's  cab,  and  as  to  the  injury  occasioned 
to  the  plaintiff's  person,  are  distinct.  Therefore  we  are  not  now 
called  upon  to  apply  a  legal  maxim,  the  application  of  which  ought 
not  to  be  stretched.  The  plaintiff  is  entitled  to  recover  the  sum  of 
£350,  awarded  by  the  jury.  Two  actions  may  be  brought  in  re- 
spect to  the  same  facts,  where  those  facts  give  rise  to  two  distinct 
causes  of  action. 

Lord  Coleridge,  C.  J.  In  this  case  I  am  ^vith  much  regret 
unable  to  concur  in  the  judgment  of  my  Brother  Bo  wen,  to  which 
I  understand  the  Master  of  the  Rolls  to  assent.  I  should  have 
been  glad  in  the  face  of  this  difference  of  opinion  to  have  given 


648         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

reasons  at  length  for  my  inability  to  agree  in  the  judgment.  But 
the  plaintiff  very  naturally  presses  for  judgment,  and  I  am  unable 
to  do  more  than  shortly  to  express  my  dissent.  It  appears  to  me 
that  whether  the  negligence  of  the  servant,  or  the  impact  of  the 
vehicle  which  the  servant  drove,  be  the  technical  cause  of  action, 
equally  the  cause  is  one  and  the  same;  that  the  injury  done  to  the 
plaintiff  is  inj  ury  done  to  him  at  one  and  the  same  moment  by  one 
and  the  same  act  in  respect  of  different  rights,  i.  e.  his  person  and 
his  goods,  I  do  not  in  the  least  deny;  but  it  seems  to  me  a  subtlety 
not  warranted  by  law  to  hold  that  a  man  cannot  bring  two  actions, 
if  he  is  injured  in  his  arm  and  in  his  leg,  but  can  bring  two,  if  besides 
his  arm  and  leg  being  injured  his  trousers  which  contain  his  leg, 
and  his  coat-sleeve  which  contains  his  arm,  have  been  torn.  The 
consequences  of  holding  this  are  so  serious,  and  may  be  very  prob- 
ably so  oppressive,  that  I  at  least  must  respectfully  dissent  from 
a  judgment  which  establishes  it.  I  think  that  the  Court  below 
was  right,  and  that  this  appeal  should  be  dismissed. 

Judgment  reversed.^ 


WILBUR,   Executor,  v.  GILMORE. 

Supreme  Judicial  Court  of  Massachusetts.     1838. 

[Reported  21  Pickering,  250.] 

Trespass  quare  clausum.  The  action  was  submitted  to  referees, 
under  a  rule  of  court.  They  awarded  to  the  plaintiff  the  sum  of  $5, 
as  the  actual  value  of  wood  and  timber  cut  and  carried  away  by  the 
defendant,  and  submitted  to  the  determination  of  the  Court  the 
legal  questions  arising  in  the  case. 

The  trespass  was  committed  in  the  lifetime  of  the  plaintiff's 
testator.     In  the  year  1835,  the  plaintiff  commenced  a  suit  against 

1  Reilly  v.  Sicilian  Asphalt  Paving  Co.,  170  N.  Y.  40,  62  N.  E.  772,  accord. 
But  see  Doran  v.  Cohen,  147  Mass.  342,  17  N.  E.  G47. 

As  to  what  causes  of  action  are  severable,  see  2  Black,  Judgments,  2d  ed., 
sec.  735;  1  Freeman,  Judgments,  4th  ed.,  sees.  238-243;  1  Van  Fleet,  Former 
Adjudication,  Chap.  V. 

A  plaintiff  against  whom  judgment  has  been  given  cannot  recover  on  the 
same  cause  of  action  although  he  urges  grounds  for  recovery  not  urged  in  the 
prior  action.  See  United  States  v.  California  &  Oregon  Land  Co.,  192  U.  S. 
355,  48  L.  ed.  476,  24  S.  Ct.  266,  in  which  case  Holmes,  J.,  said  "  The  whole 
tendency  of  our  decisions  is  to  require  a  plaintiff  to  try  his  whole  cause  of 
action  and  his  whole  case  at  one  time.  He  cannot  even  split  up  Ms  claim; 
and,  a  fortiori,  he  cannot  divide  the  grounds  of  recovery."  —  Ed. 


WILBUR   V.    GILMORE  649 

the  defendant  for  the  same  cause  of  action.  To  that  suit  there  was 
a  general  demurrer  and  joinder  in  the  Court  of  Common  Pleas,  and 
judgment  was  there  rendered  that  the  declaration  was  bad  and 
that  the  defendant  recover  his  costs.  The  defendant  insisted  that 
those  proceedings  were  a  bar  to  the  present  action.  .  .  . 

If  the  Court  should  be  of  opinion  that  the  former  proceedings 
were  not  a  bar  to  this  suit  and  tliat  the  plaintiff  had  a  right  to 
maintain  this  action,  judgment  was  to  be  entered  that  the  award  in 
favor  of  the  plaintiff  be  accepted;  and  if  otherwise,  the  defendant 
was  to  recover  his  costs  according  to  the  award. 

Morton,  J.^  .  .  .  The  former  judgment  was  rendered  on  a 
general  demurrer  to  the  declaration,  and  is  no  bar  to  this  action. 

The  general  rule  undoubtedly  is,  that  the  judgment  in  one  action 
shall  bar  all  other  suits  between  the  same  parties  and  for  the  same 
cause  of  action.  Interest  reipublicce  ut  sit  finis  litium.  But  this 
rule  is  lunited  to  j  udgments  rendered  on  the  merits.  If  the  plaintiff 
be  nonsuit  for  want  of  proof,  or  because  his  allegata  and  probata  do 
not  agree,  or  for  any  other  cause,  he  may  commence  another  action. 
1  Chitty  on  PI.  (5th  ed.)  227;  Gould  on  PI.  478.  Even  a  judgment 
of  nonsuit  on  the  merits,  or  on  an  agreed  statement  of  facts,  has 
been  holden  to  be  no  bar  to  another  action.  Knox  v.  Waldo- 
borough,  5  Greenl.  185;  Bridge  et  al.  v.  Sumner,  1  Pick.  371.  So 
if  the  plaintiff  mistake  the  form  of  his  action,  as  if  he  brings  trespass 
instead  of  trover,  and  his  writ  be  adjudged  bad  on  demurrer,  the 
judgment  will  not  bar  an  action  of  trover.  1  Chit.  PI.  (5th  ed.) 
227 ;  Gould  on  PI.  478,  §  46.  So  if  the  plaintiff  mistake  his  cause  of 
action  and  the  defendant  demur  and  have  judgment,  this  will  not 
preclude  the  plaintiff  from  commencing  a  fresh  action,  correctly 
setting  forth  the  right  cause.  So  also  if  the  declaration  be  demurred 
to,  or  a  bad  plea  be  pleaded  and  demurred  to,  and  a  judgment  be 
rendered  against  the  plaintiff  for  the  insufficiency  of  his  declara- 
tion, it  will  not  estop  the  plaintiff  from  bringing  another  action  to 
enforce  the  same  right;  because  the  case  as  stated  in  the  last 
declaration  was  not  tried  in  the  first.  In  all  these  cases,  if  the 
defendant  plead  the  former  judgment  in  bar,  the  plaintiff  may  reply 
that  it  was  not  obtained  on  the  merits.  1  Chit.  PI.  (5th  ed.)  227; 
Gould  on  PI.  478,  §45;  Vin.  Abr.  Judgment,  (Q  4);  Lampen  v. 
Kedgewin,  1  Mod.  207.  In  this  last  case.  North  C.  J.  says,  "  there 
is  no  question  but  that  if  a  man  mistakes  his  declaration  and  the 
defendant  demurs,  the  plaintiff  may  set  it  right  in  a  second  action." 

^  A  part  of  the  statement  of  facts  and  a  part  of  the  opinion  are  omitted.  — 
Ed. 


650  EFFECT   OF   JUDGMENT    ON    CONTROVERSIES 

It  is  apparent  from  the  record,  that  the  former  judgment  be- 
tween these  parties,  was  rendered  upon  the  insufficiency  of  the 
declaration  and  not  upon  the  merits  of  the  case,  and  therefore  can 
be  no  bar  to  the  present  action. 

Award  of  referees  accepted} 


ROBINSON,  Trustee  of  HOWARD,   v.   HOWARD. 

Supreme  Court  of  California.     1855. 

[Reported  5  California,  428.] 

Appeal  from  the  Superior  Court  of  the  City  of  San  Francisco. 

This  was  an  action  brought  to  foreclose  a  mortgage  made  by  the 
respondent,  C.  G.  Howard,  to  secure  the  performance  of  a  contract 
made  by  Howard  and  his  wife,  Anna  D.  Howard. 

By  that  contract,  in  contemplation  of  a  future  separation  of  the 
wife  from  the  husband,  and  in  consideration  thereof,  he  agreed  to 
pay  to  her,  through  Robinson  as  trustee,  $100  per  month,  as  long  as 
she  should  live  separate  and  apart  from  him. 

Robinson  first  brought  an  action  at  law,  in  the  Twelfth  District 
Court,  to  recover  the  sum  of  $300,  then  alleged  to  be  due  on  said 
contract,  setting  forth  the  contract  verbatim  in  the  complaint. 
Howard  demurred,  on  the  ground  that  the  contract  was  void  on  its 
face,  and  that  according  to  the  case  made,  the  plaintiff  had  no 
cause  of  action.  The  issue  on  demurrer  involved  the  whole  merits 
of  the  case.  The  demurrer  was  sustained,  and  there  was  judgment 
final  for  the  defendant  in  due  course  of  law. 

The  respondent,  in  answering  the  complaint  in  this  case,  pleaded 
specially  in  bar  the  record  and  judgment  above  mentioned.  On 
reading  the  judgment  record  upon  the  trial  in  this  case,  it  was  held 
to  be  conclusive,  and  the  Court  dismissed  the  complaint.  Plain- 
tiff appealed. 

Heydenfeldt,  J.,  delivered  the  opinion  of  the  Court.  Murray, 
C.  J.,  concurred. 

There  can  be  no  doubt  that  the  first  judgment  set  up  in  the 
answer  was  a  bar  to  this  suit.  A  judgment  upon  demurrer  is  not 
always  a  bar  to  a  subsequent  action,  but  only  when  it  determines 
the  whole  merit  of  the  case. 

1  Lampen  v.  Kedgewin,  1  Mod.  207,  accord.  See  2  Black,  Judgments,  2d 
ed.,  sees.  693  el  seq.;   1  Freeman,  Judgments,  4th  ed.,  socs.  263  cl  seq.  —  Ed, 


LOUISVILLE    &    NASHVILLE    R.  R.    CO.    V.    BEASLEY  651 

Here  the  averment  of  the  answer  shows  that  the  demurrer  went 
to  the  vahdity  of  the  contract  which  gave  rise  to  the  claim,  and 
this  averment  is  found  to  be  true  as  alleged,  by  the  Judge  at  nisi 
prius,  upon  inspecting  the  record  of  that  case. 

Judgment  affirmed.^ 


LOUISVILLE  &  NASHVILLE  RAILROAD   COMPANY 
V.   BEASLEY   &   BEASLEY. 

Supreme  Court  of  Tennessee.     1911. 
[Reported  123  Tennessee,  629.] 

Neil,  J.  Plaintiffs  below,  Beasley  &  Beasley,  brought  an  action 
against  the  railroad  company  in  1908  before  a  justice  of  the  peace 
for  injury  inflicted  upon  certain  cattle  in  course  of  shipment. 
There  was  a  jildgment  before  the  justice  for  .$49.07,  and  an  appeal 
prayed  and  prosecuted  to  the  circuit  court  of  Trousdale  county. 
There  the  case  was  tried  before  the  court  and  jury,  and  resulted  in 
a  verdict  in  favor  of  the  plaintiffs.  A  motion  in  arrest  of  judgment 
was  then  made  for  a  defect  of  substance  in  the  statement  of  the 
cause  of  action  in  the  warrant  sued  out  before  the  justice  of  the 
peace  (Railway  Co.  v.  Flood,  122  Tenn.,  56,  113  S.  W.,  384),  and 
sustained,  and  the  suit  dismissed.  In  1909  a  second  action  was 
brought  before  a  justice  of  the  peace  of  the  same  county  on  the 
same  cause  of  action,  and  a  judgment  rendered  as  before,  and  an 
appeal  to  the  same  circuit  court.  In  that  court  the  defendant 
interposed  a  plea  of  res  adjudicata,  based  on  the  former  proceeding. 
The  plea  was  overruled,  and  it  was  then  agreed  by  the  parties 
that  the  plaintiff  was  entitled  to  a  judgment  on  the  merits  of  the 
controversy,  unless  the  plea  of  res  adjudicata  could  be  lawfully 
held  effective  on  the  facts  just  presented.  A  judgment  was  then 
entered  in  favor  of  the  plaintiffs,  and  an  appeal  prayed  to  the  court 
of  civil  appeals.  In  that  court  the  action  of  the  circuit  judge  was 
affirmed,  and  a  petition  for  certiorari  was  then  filed  in  this  court, 
presenting  the  same  question  here. 

We  are  of  the  opinion  that  the  court  of  civil  appeals  reached  the 
correct  conclusion.  "  After  the  arrest  of  judgment  a  new  action 
may  be  brought,  and  the  proceeding  in  the  action  wherein  the 

1  See  Northern  Pac.  Ry.  Co.  v.  Slaght,  205  U.  S.  122,  51  L.  eel.  738,  27  S.  Ct. 
446;  Vanlandingham  v.  Ryan,  17  111.  25;  2  Black,  Judgments,  2d  ed.,  sees.  707- 
710.  —  Ed. 


652         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

judgment  was  arrested  cannot  be  pleaded  either  in  bar  or  in  abate- 
ment." Am.  and  Eng.  Enc.  of  L.  and  Pr.,  vol.  5,  p.  557.  In 
addition  to  the  foregoing,  the  point  is  covered  by  our  statute,  which 
reads:  "  If  the  action  is  commenced  within  the  time  limited,  but 
the  judgment  or  decree  is  rendered  against  the  plaintiff  upon  any 
ground  not  concluding  his  right  of  action,  or  where  the  judgment  or 
decree  is  rendered  in  favor  of  the  plaintiff,  and  is  arrested,  or  re- 
versed on  appeal,  the  plaintiff,  or  his  representatives  and  privies, 
as  the  case  may  be,  may,  from  time  to  time,  commence  a  new  action 
within  one  year  after  the  reversal  or  arrest."  Shannon's  Code, 
sec.  4446. 

Of  course,  this  section  was  primarily  intended  to  prevent  the 
running  of  the  statute  of  lunitations  in  the  cases  mentioned,  but  it 
necessarily  implies  the  existence  of  a  cause  of  action  otherwise 
valid.  This  section,  moreover,  contemplates  a  case  wherein  a 
motion  in  arrest  of  judgment  was  granted  for  matter  of  substance, 
because  under  section  4585  of  the  same  Code  motions  in  arrest  of 
judgment  for  matters  of  form  in  civil  suits  are  abolished. 

It  results  that  the  petition  for  certiorari  must  be  refused. 


WOOD  V.   FAUT. 
Supreme  Court  of  Michigan.     1884. 

[Reported  55  Michigan,  185.] 

Sherwood,  J.  The  declaration  in  this  case  is  on  the  common 
counts  in  assumpsit,  accompanied  by  a  bill  of  particulars  consisting 
of  three  items.  The  plea  is  the  general  issue  with  notice  of  former 
suit  and  adjudication  of  the  same  matter  in  bar.  The  case  orig- 
inated in  justice's  court  where  the  plaintiff  had  judgment,  and  on 
appeal  to  the  circuit  the  plaintiff  again  obtained  judgment,  and  the 
proceedings  therein  had  are  before  us  on  error  for  review.  The 
cause  was  tried  before  the  circuit  judge  without  a  jury,  and  the 
case  comes  up  on  special  findings;  the  record  containing  also  a  bill 
of  exceptions. 

There  was  testimony  supporting  all  the  findings  of  fact,  and  from 
these  findings  it  appears  that  another  suit  had  previously  been 
brought  by  the  plaintiff  against  the  defendant  for  the  same  cause 
before  a  justice  of  the  peace  in  Macldnaw  county,  and  a  judgment 
rendered  therein  of  no  cause  of  action  and  for  costs ;  that  the  dec- 
laration in  the  former  suit  was  verbal  on  the  common  counts,  and 


WOOD  V.   FAUT  653 

showed  none  of  the  items  or  particulars  of  the  plaintiff's  claim; 
that  the  plea  in  the  case  was  also  verbally  made,  being  the  general 
issue,  with  notice  of  recoupment  and  set-off,  with  no  particulars 
stated;  that  it  was  urged  by  the  defendant  on  the  former  trial  that 
the  plaintiff's  suit  was  prematurely  brought,  his  claim  not  being  due 
when  the  action  was  commenced,  and  that  the  justice  so  held  and 
did  not  pass  upon  the  merits  of  the  plaintiff's  claim,  but  made  no 
entry  upon  his  docket  to  that  effect,  other  than  his  giving  the 
judgment  stated. 

The  circuit  court  permitted  the  justice  and  counsel  in  the  case 
to  testify  as  to  what  claims  were  made  and  litigated  upon  that 
trial,  and  the  former  to  state  that  he  gave  judgment  for  the 
defendant  upon  the  sole  ground  that  the  plaintiff's  claim  was  not 
due,  and  that  he  did  not  pass  upon  the  merits. 

Upon  the  testimony  given  the  circuit  judge  found  the  above  to 
be  the  facts.  To  the  admission  of  this  testimony  and  the  findings 
of  the  circuit  judge  the  defendant  objected  and  took  his  exceptions. 

We  think  the  ruling  of  the  court  was  correct,  and  the  judgment 
well  supported  by  the  findings.  Nothing  appears  in  the  pleadings 
or  the  record  in  the  suit  tried  before  the  justice,  showing  what 
particular  clahns  or  items  were  litigated  or  passed  upon  in  that 
court.  The  findings  of  the  circuit  judge  show  that  the  claim  of  the 
plaintiff  was  not  then  due.  In  order  to  bar  the  plaintiff's  claim  it 
must  appear  that  he  had  a  legal  right  to  bring  his  action  therefor 
when  his  suit  was  brought,  and  that  in  the  litigation  had,  the 
merits  of  his  claim  were  passed  upon  by  the  justice  in  giving  judg- 
ment. Tucker  v.  Rohrback,  13  Mich.  73.  The  evidence  offered 
under  the  circumstances  of  this  case  was  proper  to  show  that  the 
merits  of  the  plaintiff's  claim  were  not  litigated  or  passed  upon  in 
the  former  suit.     Lyman  v.  Becannon,  29  Mich.  466. 

We  find  no  error  in  the  record  and  the  judgment  must  be 
affirmed.^ 

The  other  Justices  concurred. 

1  Brackett  v.  People,  115  111.  29,  3  N.E.  723;  Bacon  v.  Schepflin,  185  III.  122, 
56  N.  E.  1123  (semble);  State  of  Wisconsin  v.  Torinus,  2S  Minn.  175,  9  N.  W. 
725,  accord.  See  2  Black,  Judgments,  2d  ed.,  sec.  714;  1  Freeman,  Judgments, 
4th  ed.,  sec.  268.  —  Ed. 


654         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

GUMMER   V.   THE  TRUSTEES   OF  THE  VILLAGE 
OF  OMRO. 

Supreme  Court  of  Wisconsin.     1880. 
[Reported  50  Wisconsin,  247.] 

Orton,  J.  This  is  an  appeal  from  an  order  of  the  circuit  court 
overruling  a  demurrer  to  the  second  defense  stated  in  the  answer. 
This  defense  sets  up  a  judgment  of  nonsuit  in  a  former  action 
between  the  same  parties,  and  for  the  same  cause  of  action,  in  bar 
of  this  suit.  The  statement  in  the  answer  of  the  proceedings  in  the 
former  action,  any  further  than  that  the  nonsuit  was  granted  by 
the  court,  on  the  trial  without  a  jury,  after  the  plaintiff  had  closed 
his  evidence,  on  motion  of  the  defendant,  need  not  be  recited, 
because  it  does  not  change  the  effect  of  the  judgment.  Nor  does 
the  peculiar  and  unusual  form  of  the  judgment,  as  entered  by  the 
clerk,  upon  sustaining  the  motion  of  the  defendant  for  a  nonsuit, 
change  its  effect.  It  is,  in  effect,  a  judgment  of  nonsuit  and  for 
costs,  against  the  plaintiff,  on  the  case  made  by  him,  on  the  motion 
of  the  defendant.  On  such  a  motion  the  court  must  necessarily 
consider  and  pass  upon  the  legal  effect  of  the  evidence  introduced 
by  the  plaintiff,  and  the  formal  entry  of  the  judgment  by  the  clerk, 
dismissing  the  complaint  and  for  costs  against  the  defendant,  does 
not  affect  the  question. 

The  only  question,  then,  presented  by  tliis  appeal  is,  whether 
that  judgment  is  a  bar  to  the  present  suit.  It  is  not  contended  by 
the  learned  counsel  of  the  respondent  that  a  voluntary  nonsuit  bars 
another  action,  but  only  that  an  involuntary  nonsuit,  so  granted  on 
the  motion  of  the  defendant,  has  that  effect.  The  practice  of 
granting  such  a  nonsuit  is  an  old  one  even  in  England,  where  the 
evidence  of  the  plaintiff  is  insufficient  to  entitle  him  to  a  verdict, 
and  where  a  judgment  for  the  plaintiff  upon  it  would  be  arrested. 
Sadler  v.  Robins,  1  Campb.,  256.  And  such  a  practice  has  been 
followed  in  this  country  in  nearly  all  of  the  states.  It  is  significant 
that  no  case  in  point  has  been  found,  upon  a  quite  extended  exami- 
nation of  the  reports,  in  which  it  has  been  directly  held  that  such  a 
nonsuit  is  a  bar.  In  some  cases  it  has  been  held  that  the  practice 
of  granting  such  a  nonsuit  on  motion  of  the  defendant  is  analogous 
to  a  demurrer  to  the  evidence,  where  judgment  upon  such  a.  demur- 
rer is  not  final  as  at  common  law,  but  where,  after  such  a  demurrer 
has  been  overruled,  the  defendant  may,  notwithstanding,  proceed 
with  his  defense.     Smyth  v.  Craig,  3  Watts  &  Serg.,  18;  Bevan  v. 


GUMMER   V.    VILLAGE    OF   OMRO  655 

Ins.  Co.,  9  Watts  &  Serg.,  187;  Levy  v.  Simmons,  42  Ga.,  53.  In 
these  cases  the  demurrer  to  the  evidence  was  treated  as  a  motion 
for  a  nonsuit.  If  the  overruhng  of  such  a  demurrer  is  not  con- 
clusive upon  the  defendant,  it  would  seem  that  sustaining  it  ought 
not  to  be  conclusive  upon  the  plaintiff  to  bar  him  of  another  suit. 

But,  in  whatsoever  manner  or  by  whatsoever  analogy  this 
practice  may  have  obtained,  the  effect  of  such  a  nonsuit  seems  to  be 
precisely  the  same  as  that  of  a  nonsuit  asked,  taken  or  submitted 
to  by  the  plaintiff,  or  that  of  a  voluntary  nonsuit,  so  called;  and  it 
makes  no  cUfference  whether  the  form  of  such  a  judgment  be  the 
dismissal  of  the  suit  or  of  the  complaint.  Bond  v.  McNider,  3 
Ired.  Law,  440.  In  that  case  the  entry  was,  "  chsmissed  at  de- 
fendant's cost."  The  court  held  that  it  was  in  effect  a  nonsuit,  and 
no  bar  to  another  action. 

In  McKinney  v.  Finch,  1  Scam.,  152,  a  justice  of  the  peace  dis- 
missed the  suit  for  insufficiency  of  proof;  it  was  held  in  effect  a 
nonsuit  and  no  bar.  In  Elwell  v.  McQueen,  10  Wend.,  519,  the 
court  uses  the  foUowmg  language:  "  A  justice,  at  the  trial,  has  a 
right  to  nonsuit  the  plaintiff,  if,  in  his  judgment,  he  fails  upon  his 
own  showing  to  make  out  his  case,  either  on  the  ground  of  the 
incompetency  or  the  insufficiency  of  his  evidence,  and  a  judgment 
of  nonsuit  in  such  a  case  is  no  bar  to  another  action  for  the  same 
cause."  To  the  same  effect  are  Coit  v.  Beartl,  33  Barb.,  357,  and 
Audubon  v.  The  Excelsior  Ins.  Co.,  27  N.  Y.,  216.  On  a  noiLSuit 
the  plaintiff  pays  costs  as  if  the  defendant  obtained  a  verdict. 
BickneU's  Pr.,  140;  Cowper,  407;  1  Strange,  300.  The  only  dif- 
ference between  a  dismissal  and  a  nonsuit  is  said  to  be,  that  the 
former  must  be  made  before  the  jury  returns  into  court.  BickneU's 
Pr.,  140;  3  Black.  Com.,  376.  The  books  of  practice  agree  that 
there  is  no  cUfference  in  the  effect  of  the  judgment  between  a 
voluntary  and  an  involuntary  nonsuit.  Freeman  on  Judgments, 
§  261,  cites  many  authorities  to  sustain  his  text  asserting  the  same 
principle.  2  Whittaker's  Pr.,  357;  3  Wait's  Pr.,  163.  That  the 
facts  in  evidence  given  by  the  plaintiff  are  fully  considered  by  the 
court,  upon  a  motion  for  a  nonsuit,  in  determining  the  question 
whether  in  law  they  entitle  the  plaintiff  to  recover,  constitutes  no 
such  trial  on  the  merits  as  to  make  the  nonsuit  a  bar.  It  is  the 
form  of  the  judgment  of  nonsuit  which  gives  to  it  its  legal  effect,  and 
not  the  facts  considered  on  the  motion.  Fisk  v.  Parker,  14  La. 
An.,  491. 

We  conclude,  then,  that  a  judgment  of  nonsuit,  whether  vol- 
untary or  involuntary,  is  never  a  bar  to  another  action  for  the  same 


656         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

cause.  This  rule  in  respect  to  involuntary  nonsuits  is  not  only 
sustained  by  the  authorities,  but  by  reason,  and  is  evidently 
recognized  generally  by  the  courts  and  the  bar,  from  the  common 
practice  of  nonsuits  granted  on  motion,  without  a  question  as  to 
their  effect  on  barring  another  action.  The  defendant,  instead  of 
moving  for  a  nonsuit  on  the  case  made  by  the  plaintiff,  may,  if  he 
have  confidence  in  his  position,  have  a  judgment  which  will  be  a  bar 
to  another  action  by  submitting  the  cause  to  the  verdict  of  a  jury, 
or  to  the  court,  if  a  jury  be  waived.  He  should  not  be  allowed  to 
experiment  with  a  motion  for  a  nonsuit,  and  obtain  the  opinion  of 
the  court  of  the  plaintiff's  case,  and,  if  he  fails  in  his  motion,  then 
go  to  a  full  trial  on  the  merits,  without  also  allowing  the  plaintiff, 
if  he  is  the  losing  party  on  the  hearing  of  the  motion,  to  sue  over. 
If  the  defendant  is  not  bound  and  concluded  by  the  decision  of  the 
motion,  the  plaintiff  should  not  be;  and  if  the  rule  is  adopted  that 
a  nonsuit  granted  upon  the  motion  of  the  defendant  is  a  bar  to 
another  action,  then  the  correlative  rule  should  be  adopted  also, 
that  a  decision  against  the  motion  operates  as  a  judgment  for  the 
plaintiff.  This  rule  as  to  the  effect  of  the  judgment  will  encourage 
the  practice  of  moving  for  a  nonsuit  on  the  case  made  by  the  plain- 
tiff, and  thus  often  save  the  time  and  expense  of  a  full  and  needless 
trial,  when  the  plaintiff  has  failed  to  sustain  his  action,  by  incom- 
petency or  insufficiency  of  proof. 

The  question  first  cUscussed  in  the  brief  of  the  learned  counsel  of 
the  respondent,  as  to  the  sufficiency  of  his  first  defense,  will  not  be 
considered,  because  not  here  on  this  appeal. 

By  the  Court.  The  order  of  the  circuit  court  overruling  the 
demurrer  to  the  second  defense  of  the  respondent's  answer  is 
reversed,  with  costs,  and  the  cause  remanded  for  further  proceed- 
ings according  to  law.^ 

1  See  Deneen  v.  Street  Ry.  Co.,  150  Mich.  235,  113  N.  W.  112G,  13  Ann. 
Cas.  134;  Mason  v.  Kansas  City  Belt  Ry.  Co.,  226  Mo.  212,  125  S.  W.  1128, 
26  L.  R.  A.  (n.  s.),  914;  Coit  v.  Beard,  33  Barb.  (N.  Y.),  357;  Holland  v. 
Hatch,  15  Oh.  St.  464;  Robinson  v.  Merchants',  etc.,  Co.,  16  R.  I.  637,  19  Atl. 
113;  23  Cyc.  1136.  Compare  Poyser  v.  Minors,  7  Q.  B.  D.  329;  Strehlau  v. 
Lumber  Co.,  152  Wis.  589,  140  N.  W.  26.  —  Ed. 


BERMAN   V.    HENRY   N.    CLARK    COMPANY  657 

THORESON  and  Another  v.  MINNEAPOLIS 
HARVESTER  WORKS. 

Supreme  Court  of  Minnesota.     1882. 

[Reported  29  Minnesota,  341.] 

This  action  is  brought  to  recover  damages  for  breach  of  warranty 
made  upon  the  sale  of  a  reaping  machine  by  the  defendant  to  the 
plaintiffs.  The  answer  sets  up,  as  a  bar  to  this  action,  a  judgment 
of  the  mimicipal  court  of  St.  Paul,  entered  by  default  against  the 
plaintiffs  on  two  of  the  promissory  notes  given  for  the  reaper.^ 

Dickinson,  J.  .  .  .  The  former  recovery  of  a  judgment  by  this 
defendant  against  the  plaintiffs,  on  default  of  the  latter  upon  some 
of  the  notes  given  for  the  purchase  of  the  machine,  constituted  no 
bar  to  a  recovery  in  this  action  for  breach  of  the  contract  of  war- 
ranty. The  facts  constituting  the  cause  of  action  in  this  case  were 
not  involved  in  the  former  action  upon  the  notes,  and  could  only 
have  been  properly  presented  for  adjudication  therein  by  affirma- 
tive allegations  and  proof,  on  the  part  of  the  defendants  in  such 
action,  in  the  nature  of  counterclaim  or  recoupment.  Formerly,  in 
such  an  action,  the  practice  allowed  a  full  recovery  of  the  purchase 
price,  and  left  the  vendee  to  seek  his  remedy  by  a  cross-action. 
Mondel  v.  Steel,  8  M.  &  W.  858;  Rigge  v.  Burbidge,  15  M.  &  W. 
598.  Now  the  vendee  has  his  election  to  plead  the  breach  of  contract 
of  warranty  in  reduction  of  damages,  in  an  action  brought  by  the 
vendor  for  the  price,  or  to  bring  a  cross-action,  as  was  done  in  this 
case.  Such  action  is  not  barred  by  the  former  recovery  of  the 
price.  Davis  v.  Hedges,  L.  R.  6  Q.  B.  687;  Bodurtha  v.  Phelon,  13 
Gray,  413;  McKnight  v.  Devhn,  52  N.  Y.  399;  Barker  v.  Cleve- 
land, 19  Mich.  230;  Benjamin  on  Sales  (3d  Ed.),  894,  899.^  .  .  . 


BERMAN  V.   HENRY  N.   CLARK  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1907. 

[Reported  194  Massachusetts,  248.] 

Contract  for  a  breach  of  a  contract  of  warranty  in  writing 
which  is  quoted  in  the  first  paragraph  of  the  opinion.  Writ  in  the 
Municipal  Court  of  the  City  of  Boston  dated  January  7,  1905. 

1  The  statement  of  facts  is  abridged,  and  a  part  of  the  opinion  is  omitted.  — 
Ed. 

2  See  Davis  v.  Hedges,  L.  R.  6  Q.  B.  687;  2  Black,  Judgments,  2d  ed., 
sees.  761  et  seq.;   1  Freeman,  Judgments,  4th  ed.,  sees.  277  et  seq.  —  Ed. 


658         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

The  answer  contained  a  general  denial,  and  also  set  up  as  a  bar 
the  judgment  which  is  described  in  the  opinion. 

On  appeal  to  the  Superior  Court  the  case  was  tried  before 
Crosby,  J.,  who  ordered  a  verdict  for  the  defendant,  and  at  the  re- 
quest of  the  plaintiff  reported  the  case  for  determination  by  this 
court.  If  the  direction  was  wrong  as  a  matter  of  law,  the  verdict 
was  to  be  set  aside  and  such  disposition  was  to  be  made  of  the  case 
as  law  and  justice  might  require.  If  the  direction  was  correct, 
judgment  was  to  be  entered  for  the  defendant  on  the  verdict. 

The  case  was  submitted  on  briefs. 

Knowlton,  C.  J.  The  defendant  made  a  contract  in  writing  to 
furnish  and  put  in  place  specific  apparatus  for  heating  three  houses 
belonging  to  the  plaintiff.  The  contract  contained  a  guaranty  as 
follows:  "  We  guarantee  this  apparatus  to  be  complete  in  every 
way  and  when  finished  to  be  capable  of  warming  all  rooms  in  which 
radiators  are  placed  to  70°  in  zero  weather.  We  guarantee  this 
apparatus  against  all  imperfections  in  material  and  workmanship 
for  one  year."  Tliis  action  is  brought  to  recover  upon  this  guar- 
anty. 

An  earlier  action  was  brought  by  the  defendant  company  against 
the  plaintiff,  to  recover  the  price  of  this  apparatus,  and  for  extra 
work  in  connection  with  the  contract.  As  a  defence  to  this  former 
action,  the  present  plaintiff  answered,  denying  that  the  plaintiff  in 
that  action  had  fulfilled  its  contract,  and  averring  that  it  failed  to 
provide  apparatus  which  complied  with  the  guaranty  contained  in 
the  contract,  in  that  the  apparatus  furnished  has  been  and  was 
unable  to  heat  the  apartments  to  seventy  degrees  in  zero  weather, 
etc.,  and  claiming  a  recoupment  of  damages.  After  a  trial  upon 
these  pleadings,  the  plaintiff  in  that  action  recovered  from  the 
present  plaintiff  the  full  amount  claimed  in  its  declaration.  The 
only  question  now  before  us  is  whether  the  judgment  in  the  former 
action  is  a  bar  to  the  present  one. 

We  think  it  plain  that  it  is.  The  principles  applicable  to  the 
case  were  considered  in  Gilmore  v.  Williams,  162  Mass.  351,  in 
Bradley  v.  Bradley,  160  Mass.  258,  and  in  Watts  v.  Watts,  160 
Mass.  464.  See  also  Morse  v.  Ekns,  131  Mass.  151.  In  Gihnore 
V.  Williams  it  was  said  of  the  plaintiff,  seeking  to  recover  on  a 
Ijreach  of  warranty,  he  having  previously  set  up  this  breach  as  a 
defence  to  an  action  upon  the  note  given  in  consideration  of  the 
warranty,  ''  if  he  chose  to  plead  the  breach  of  warranty  in  answer 
to  the  claim  on  the  note,  and  if  a  judgment  was  entered  against 
Liin  for  the  whole  amount  due  on  the  note,  or  a  part  of  it,  on  the 


CROMWELL   V.    COUNTY    OF   SAC  659 

issue  thus  raised,  the  judgment  would  be  a  bar  to  any  further 
claim  under  the  warranty.  This  would  be  so  whether  the  judg- 
ment was  entered  by  consent  of  parties,  or  upon  a  default  after 
answer,  or  upon  a  verdict  after  trial  on  the  facts.  His  election  to 
claim  his  damages  by  way  of  recoupment  in  that  suit  would  be 
conclusive  on  him."  Tliis  doctrine  is  conclusive  against  the  right 
of  the  plaintiff  to  recover  in  the  present  case.  There  is  a  well 
recognized  cUstinction,  referred  to  in  the  cases  above  cited,  between 
the  effect  of  a  judgment  pleaded  as  an  estoppel  as  to  facts  arising 
collaterally  in  another  action,  and  its  effect  as  a  final  determination 
of  the  matters  declared  on  as  the  cause  of  action,  or  set  up  in  the 
answer  as  a  ground  for  an  allowance  in  defence. 

It  is  immaterial  that  there  had  been  no  zero  weather  before  the 
trial  of  the  first  action.  The  capacity  of  the  apparatus  was  put  in 
issue,  and  could  be  shown  otherwise  than  by  actual  experiment. 
Evidence  was  introduced  on  the  subject,  and  it  would  have  been 
in  the  power  of  the  court,  upon  motion,  to  continue  the  case  for 
trial  until  there  was  an  opportunity  for  an  experiment,  if  it  had 
been  thought  advisable  to  do  so.  Judgment  on  the  verdict} 


CROMWELL  V.   COUNTY  OF  SAC. 

Supreme  Court  of  the  United  States.     1876. 

[Reported  94  United  States,  351.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Iowa. 

The  action  was  on  certain  bonds  and  coupons  thereto  attached, 
issued  by  the  county  of  Sac,  in  the  State  of  Iowa.  The  facts  are 
sufficiently  stated  in  the  opinion  of  the  court.  The  defendant 
obtained  judgment,  and  the  plaintiff  brought  the  case  here. 

Field,  J.^  This  was  an  action  on  four  bonds  of  the  county  of 
Sac,  in  the  State  of  Iowa,  each  for  .$1,000,  and  four  coupons  for 
interest,  attached  to  them,  each  for  $100.  The  bonds  were  issued 
in  1860,  and  were  made  payable  to  bearer,  in  the  city  of  New  York, 

^  As  to  the  right  of  a  dofendant  who  has  interposed  a  defense  by  way  of 
recoupment,  set-off  or  counterclaim,  on  which  he  is  successful,  see  Mendell  v. 
Steel,  8  M.  &  W.  858;  Burnett  v.  Smith,  4  Gray  (Mass.),  50;  Star  Glass  Co. 
V.  Morey,  108  Mass.  570;  Osborne  v.  Williams,  39  Minn.  353,  40  N.  W.  1G5; 
2  Black,  Judgments,  2d  ed.,  soc.  763.  —  Ed. 

2  A  part  of  the  opinion  is  omitted,  together  with  the  dissenting  opinion  of 
Clifford,  J.  —  Ed. 


660         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

in  the  years  1868,  1869,  1870,  and  1871,  respectively,  with  annual 
interest  at  the  rate  of  ten  per  cent  a  year. 

To  defeat  this  action,  the  defendant  relied  upon  the  estoppel  of  a 
judgment  rendered  in  favor  of  the  county  in  a  prior  action  brought 
by  one  Samuel  C.  Smith  upon  certain  earlier  maturing  coupons  on 
the  same  bonds,  accompanied  with  proof  that  the  plaintiff  Crom- 
well was  at  the  time  the  owner  of  the  coupons  in  that  action,  and 
that  the  action  was  prosecuted  for  his  sole  use  and  benefit. 

The  questions  presented  for  our  determination  relate  to  the 
operation  of  this  judgment  as  an  estoppel  against  the  prosecution 
of  the  present  action,  and  the  admissibility  of  the  evidence  to 
connect  the  present  plaintiff  with  the  former  action  as  a  real  party 
in  interest. 

In  considering  the  operation  of  this  judgment,  it  should  be 
borne  in  mind,  as  stated  by  counsel,  that  there  is  a  difference 
between  the  effect  of  a  judgment  as  a  bar  or  estoppel  against  the 
prosecution  of  a  second  action  upon  the  same  claim  or  demand,  and 
its  effect  as  an  estoppel  in  another  action  between  the  same  parties 
upon  a  different  claim  or  cause  of  action.  In  the  former  case,  the 
judgment,  if  rendered  upon  the  merits,  constitutes  an  absolute  bar 
to  a  subsequent  action.  It  is  a  finality  as  to  the  claim  or  demand 
in  controversy,  concluding  parties,  and  those  in  privity  with  them, 
not  only  as  to  every  matter  which  was  offered  and  received  to 
sustain  or  defeat  the  claim  or  demand,  but  as  to  any  other  admis- 
sible matter  which  might  have  been  offered  for  that  purpose. 
Thus,  for  example,  a  judgment  rendered  upon  a  promissory  note 
is  conclusive  as  to  the  valichty  of  the  instrument  and  the  amount 
due  upon  it,  although  it  be  subsequently  alleged  that  perfect 
defences  actually  existed,  of  which  no  proof  was  offered,  such  as 
forgery,  want  of  consideration,  or  payment.  If  such  defences 
were  not  presented  in  the  action,  and  established  by  competent 
evidence,  the  subsequent  allegation  of  their  existence  is  of  no  legal 
consequence.  The  judgment  is  as  conclusive,  so  far  as  future 
proceedings  at  law  are  concerned,  as  though  the  defences  never 
existed.  The  language,  therefore,  which  is  so  often  used,  that  a 
judgment  estops  not  only  as  to  every  ground  of  recovery  or  de- 
fence actually  presented  in  the  action,  but  also  as  to  every 
ground  which  might  have  been  presented,  is  strictly  accurate,  when 
applied  to  the  demand  or  claim  in  controversy.  Such  demand  or 
claim,  having  passed  into  judgment,  cannot  again  be  brought  into 
litigation  between  the  parties  in  proceedings  at  law  upon  any 
ground  whatever. 


CROMWELL  V.    COUNTY  OF  SAC  661 

But  where  the  second  action  between  the  same  parties  is  upon  a 
different  claim  or  demand,  the  judgment  in  the  prior  action  operates 
as  an  estoppel  only  as  to  those  matters  in  issue  or  points  con- 
troverted, upon  the  determination  of  which  the  finding  or  verdict 
was  rendered.  In  all  cases,  therefore,  where  it  is  sought  to  apply 
the  estoppel  of  a  judgment  rendered  upon  one  cause  of  action  to 
matters  arising  in  a  suit  upon  a  different  cause  of  action,  the 
inquiry  must  always  be  as  to  the  point  or  question  actually  litigated 
and  determined  in  the  original  action,  not  what  might  have  been 
thus  litigated  and  determined.  Only  upon  such  matters  is  the 
judgment  conclusive  in  another  action.  .  .  . 

It  is  not  believed  that  there  are  any  cases  going  to  the  extent 
that  because  in  the  prior  action  a  different  question  from  that 
actually  determined  might  have  arisen  and  been  litigated,  there- 
fore such  possible  question  is  to  be  considered  as  excluded  from 
consideration  in  a  second  action  between  the  same  parties  on  a 
different  demand,  although  loose  remarks  looking  in  that  direction 
may  be  found  in  some  opinions.  On  principle,  a  point  not  in 
litigation  in  one  action  cannot  be  received  as  conclusively  settled 
in  any  subsequent  action  upon  a  different  cause,  because  it  might 
have  been  determined  in  the  first  action. 

Various  considerations,  other  than  the  actual  merits,  may 
govern  a  party  in  bringing  forward  grounds  of  recovery  or  defence 
in  one  action,  which  may  not  exist  in  another  action  upon  a  dif- 
ferent demand,  such  as  the  smallness  of  the  amount  or  the  value  of 
the  property  in  controversy,  the  difficulty  of  obtaining  the  neces- 
sary evidence,  the  expense  of  the  litigation,  and  his  own  situation 
at  the  time.  A  party  acting  upon  considerations  like  these  ought 
not  to  be  precluded  from  contesting  in  a  subsequent  action  other 
demands  arising  out  of  the  same  transaction.  A  judgment  by 
default  only  admits  for  the  purpose  of  the  action  the  legality  of  the 
demand  or  claim  in  suit:  it  does  not  make  the  allegations  of  the 
declaration  or  comj^laint  evidence  in  an  action  upon  a  different 
claim.  The  declaration  may  contain  different  statements  of  the 
cause  of  action  in  different  counts.  It  could  hardly  be  pretended 
that  a  judgment  by  default  in  such  a  case  would  make  the  several 
statements  evidence  in  any  other  proceeding.  Boyleau  v.  Rutlin, 
2  Exch.  665,  681;  Hughes  v.  Alexander,  5  Duer,  493.  .  .  . 

If,  now,  we  consider  the  main  question  presented  for  our  deter- 
mination by  the  light  of  the  views  thus  expressed  and  the  authori- 
ties cited,  its  solution  will  not  be  difficult.  It  appears  from  the 
findings  in  the  original  action  of  Smith,  that  the  county  of  Sac,  by  a 


662         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

vote  of  its  people,  authorized  the  issue  of  bonds  to  the  amount  of 
$10,000,  for  the  erection  of  a  court-house;  that  bonds  to  that 
amount  were  issued  by  the  county  judge,  and  dehvered  to  one 
Meserey,  with  whom  he  had  made  a  contract  for  the  erection  of 
the  court-house;  that  immediately  upon  receipt  of  the  bonds  the 
contractor  gave  one  of  them  as  a  gratuity  to  the  county  judge;  and 
that  the  court-house  was  never  constructed  by  the  contractor,  or 
by  any  other  person  pursuant  to  the  contract.  It  also  appears 
that  the  plaintiff  had  become,  before  their  maturity,  the  holder  of 
twenty-five  coupons,  which  had  been  attached  to  the  bonds;  but 
there  was  no  finding  that  he  had  ever  given  any  value  for  them. 
The  court  below  held,  upon  these  findings,  that  the  bonds  were 
void  as  against  the  county,  and  gave  judgment  accordingly.  The 
case  coming  here  on  writ  of  error,  this  court  held  that  the  facts 
disclosed  by  the  findings  were  sufficient  evidence  of  fraud  and 
illegality  in  the  inception  of  the  bonds  to  call  upon  the  holder  to 
show  that  he  had  given  value  for  the  coupons;  and,  not  having  done 
so,  the  judgment  was  affirmed.  Reading  the  record  of  the  lower 
court  by  the  opinion  and  judgment  of  this  court,  it  must  be  con- 
sidered that  the  matters  adjudged  in  that  case  were  these:  that 
the  bonds  were  void  as  against  the  county  in  the  hands  of  parties 
who  did  not  acquire  them  before  maturity  and  give  value  for  them, 
and  that  the  plaintiff,  not  having  proved  that  he  gave  such  value, 
was  not  entitled  to  recover  upon  the  coupons.  Whatever  illegality 
or  fraud  there  was  in  the  issue  and  delivery  to  the  contractor  of  the 
bonds  affected  equally  the  coupons  for  interest  attached  to  them. 
The  finding  and  judgment  upon  the  invalidity  of  the  bonds,  as 
against  the  county,  must  be  held  to  estop  the  plaintiff  here  from 
averring  to  the  contrary.  But  as  the  bonds  were  negotiable 
instruments,  and  their  issue  was  authorized  by  a  vote  of  the 
county,  and  they  recite  on  their  face  a  compliance  with  the  law 
providing  for  their  issue,  they  would  be  held  as  valid  obligations 
against  the  county  in  the  hands  of  a  bona  fide  holder  taking  them 
for  value  before  maturity,  according  to  repeated  decisions  of  this 
court  upon  the  character  of  such  obligations.  If,  therefore,  the 
plaintiff  received  the  bond  and  coupons  in  suit  before  maturity  for 
value,  as  he  offered  to  prove,  he  should  have  been  permitted  to 
show  that  fact.  There  was  nothing  adjudged  in  the  former  action 
in  the  finding  that  the  plaintiff  had  not  made  such  proof  in  that 
case  which  can  preclude  the  present  plaintiff  from  making  such 
proof  here.  The  fact  that  a  party  may  not  have  shown  that  he 
gave  value  for  one  bond  or  coupon  is  not  even  presumptive,  much 


GARDNER   V.    BUCKBEE  6G3 

less  conclusive,  evidence  that  he  may  not  have  given  value  for 
another  and  different  bond  or  coupon.  The  exclusion  of  the  evi- 
dence offered  by  the  plaintiff  was  erroneous,  and  for  the  ruling  of 
the  court  in  that  respect  the  judgment  must  be  reversed  and  a  new 
trial  had. 

Upon  the  second  question  j^resented,  we  think  the  court  below 
ruled  correctly.  Evidence  showing  that  the  action  of  Smith  was 
brought  for  the  sole  use  and  benefit  of  the  present  plaintiff  was,  in 
our  judgment,  admissible.  The  finding  that  Smith  was  the  holder 
and  owner  of  the  coupons  in  suit  went  only  to  this  extent,  that  he 
held  the  legal  title  to  them,  which  was  sufficient  for  the  purpose  of 
the  action,  and  was  not  inconsistent  with  an  equitable  and  bene- 
ficial interest  in  another. 

Judgment  reversed,  and  cause  remanded  Jor  a  new  trial} 


GARDNER  v.   BUCKBEE. 

Supreme  Court  of  New  York.     1824. 

[Reported  3  Cowen,  120.] 

Curia,  per  Woodworth,  J.^  This  is  a  writ  of  error  to  the  Com- 
mon Pleas  of  the  city  of  New  York.  Buckbee,  plaintiff  in  the 
Court  below,  commenced  an  action  against  Gardner,  on  a  promis- 
sory note.  The  defendant  pleaded  the  general  issue,  and  gave 
notice  of  special  matter,  that  the  note  was  given  in  part  payment 
for  a  vessel  called  the  Tiger,  sold  to  the  defendant  and  others,  and 
alleged  fraud  by  the  plaintiff  in  the  sale;  the  vessel  being  at  the 
time  rotten  and  uixseaworthy,  and  that  known  to  the  plaintiff.  At 
the  trial  the  plaintiff  admitted,  that  the  note  was  one  of  two 
promissory  notes,  for  the  same  amount,  given  by  the  defendant 
and  two  others,  as  the  consideration  upon  the  sale  of  the  vessel. 

The  defendant  offered  to  prove,  in  bar  of  the  plaintiff's  demand, 
that  the  plaintiff  impleaded  the  defendant,  in  the  Marine  Court  of 
the  city  of  New  York,  upon  a  promissory  note,  bearing  even  date, 
and  for  the  same  amount  as  the  one  now  in  question,  signed  by  the 
same  parties,  and  given  for  the  consideration  money;  that,  upon 
the  trial  in  the  Marine  Court,  the  fraud  of  the  plaintiff  in  the  sale 

1  See  Radford?;.  Myers,  231  U.  S.  725,  58  L.  ed.  454,  34  S.  Ct.  249;  Harmon  v. 
Auditor  of  Public  Accounts,  123  111.  122,  13  N.  E.  IGl.      See  also  Cote  v. 
New  Eng.  Nav.  Co.,  213  Mass.  177,  99  N.  E.  972.  —  Ed. 
'  Only  the  opinion  of  the  court  is  here  given.  —  Ed. 


664         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

was  the  only  point  in  question;  and  that  judgment  had  been 
rendered  in  that  Court  in  favour  of  the  defendant,  on  the  ground 
that  the  sale  was  fraudulent.  The  plaintiff  objected  to  the  testi- 
mony, because  the  judgment  had  not  been  pleaded,  or  notice 
given;  and  that  the  note  on  which  the  present  suit  was  brought, 
is  a  different  instrument  from  that  declared  on  in  the  Marine 
Court.  The  Judge  declared  the  evidence  was  not  admissible,  in 
that  stage  of  the  cause,  but  might  be  offered,  after  proof  to  the 
jury  of  the  fraud,  and  in  support  thereof,  to  which  the  defendant 
excepted. 

The  defendant,  then,  in  proof  of  the  fraud,  offered  in  evidence 
the  record  of  the  judgment  in  the  Marine  Court,  in  favour  of  the 
defendant,  on  the  other  note.  By  the  record  it  appeared  that  the 
defendant  pleaded  the  general  issue,  and  gave  notice  of  a  total 
failure  of  the  consideration.  J.  B.  Scott,  one  of  the  Justices  of 
that  Court,  testified  that  the  matters  directly  in  question  before 
the  Marine  Court,  were,  the  unseaworthiness  of  the  vessel  at  the 
time  of  sale,  and  the  knowledge  of  that  fact  by  the  plaintiff;  it  not 
being  disclosed  at  the  time  of  sale  to  the  defendant. 

The  counsel  for  the  defendant  then  insisted,  that  the  record  was 
a  judgment  of  a  Court  of  concurrent  jurisdiction,  upon  the  same 
matters  in  question  in  the  Court  below,  and  was  conclusive  evi- 
dence in  favour  of  the  defendant  to  entitle  him  to  a  verdict.  The 
Judge  decided,  and  charged  the  jury,  that  the  matters  given  in 
evidence  by  the  defendant,  were  not,  in  themselves,  sufficient  to 
bar  the  plaintiff's  action,  but  were  entitled  to  the  serious  considera- 
tion of  the  jury,  and  were  to  be  taken  by  them  in  conjunction  with 
the  other  evidence  of  fraud  offered  in  proof.  The  jury  found  a 
verdict  for  the  plaintiff.     The  defendant  excepted  to  the  opinion. 

It  appears  clearly  that  the  question  of  fraud  was  tried  between 
the  parties,  in  the  Marine  Court,  on  one  of  the  notes  given  in  part 
payment  of  the  vessel.  That  Court  had  concurrent  jurisdiction. 
The  question  is,  whether  the  judgment  thus  obtained  is  not  a  con- 
clusive bar  to  a  recovery  in  this  cause  ?  The  law  is  well  settled, 
that  the  judgment  of  a  Court  of  concurrent  jurisdiction,  directly 
upon  the  point,  is,  as  a  plea  in  bar,  or  evidence,  conclusive  between 
the  same  parties,  upon  the  same  matter  directly  in  question  in 
another  Court.  This  was  the  rule  laid  down  by  De  Grey,  Chief 
Justice,  in  delivering  judgment  in  the  Duchess  of  Kingston's  case. 
(11  State  Tri.  201.  1  Phil.  Ev.  223.  1  Peters'  Hep.  202,  Cir. 
Court  U.  S.)  I  am  not  aware  that  it  has  been  departed  from  by 
our  Courts.      The  general  principle  docs  not  appear  to  be  con- 


GARDNER   V.    BUCKBEE  665 

tro verted  by  the  counsel  for  the  defendant  in  error;  but  it  is  urged 
that  the  judgment  in  the  Marine  Court  does  not  affirm  any  partic- 
ular fact  in  issue  in  this  cause,  but  is  general  and  indefinite;  and 
that,  from  the  language  of  the  record,  it  cannot  be  inferred  whether 
the  two  cases  were  founded  on  the  same  or  a  different  state  of  facts. 
It  is  true,  the  record  merely  proves  the  pleadings,  and  that  judg- 
ment was  rendered  for  the  defendant.  Without  other  proof  it 
would  not  make  out  the  defence.  The  record  shows  that  it  was 
competent,  on  the  trial,  to  establish  the  fraud  of  the  plaintiff. 
Whether  fraud  was  made  out,  and  whether  that  was  the  point 
upon  which  the  decision  was  founded,  must  necessarily  be  proved 
by  evidence  extrinsic  the  record.  To  do  so  is  not  inconsistent 
with  the  record,  nor  does  it  impugn  its  verity.  The  jury  must 
have  passed  on  the  fraud.  It  was  directly  in  question.  Scott 
testifies  that  the  unseaworthiness  was  not  cUsclosed  at  the  time  of 
sale  to  the  defendant.  The  inquiiy,  then,  was  solely  directed  to 
the  question,  was  the  vessel  miseaworthy,  and  had  the  plaintiff 
knowledge  of  that  fact  when  he  sold  ?  By  the  finding  of  the  jury, 
both  propositions  are  affirmed.  The  judgment  became  conclusive 
between  these  parties,  on  these  points,  and  is  an  effectual  bar  to  the 
action  to  recover  the  residue  of  the  consideration  money.  It  is 
unnecessary  to  consider  whether  the  record  was  admissible  in 
evidence  under  the  general  issue,  without  notice.  It  was  admitted, 
and  no  exception  was  taken  on  that  ground.  The  effect  ascribed 
to  it  seems  to  be  the  material  question  in  the  case.  It  is  in  general 
true,  that,  under  non  assumpsit,  most  matters  in  discharge  of  the 
action,  which  show  that  at  the  time  of  the  commencement  of  the 
suit  the  plaintiff  had  no  cause  of  action,  may  be  taken  advantage  of 
(1  Chit.  472).  This  rule  may  appear  somewhat  arbitrary,  as  the 
object  of  pleading  is  to  apprize  the  adverse  party  of  the  grounds  of 
defence.  It  is,  however,  peculiar  to  this  action,  although,  as 
Chitty  observes,  not  according  with  the  logical  precision  which 
usually  prevails  in  pleadings.  The  Judge  ought  to  have  charged 
the  jury,  that  if,  from  the  evidence,  they  were  satisfied  that  the 
matters  in  question  had  been  passed  upon  in  the  Marine  Court,  the 
record  was  conclusive  against  the  plaintiff's  right  to  recover. 

I  am  of  opinion  that  the  exceptions  are  well  taken,  and  that  the 
judgment  ought  to  be  reversed.  Judgment  reversed} 

1  See  Hanna  v.  Read,  102  lU.  596;  Wright  v.  Griffey,  147  111.  496,  35  N.  E. 
732;  People's  Water  Co.  v.  Pittston,  241  Pa.  208. 

The  judgment  is  a  bar  although,  by  reason  of  the  small  amount  in  dispute,  it 


666         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

HIBSHMAN   V.   DULLEBAN. 

Supreme  Court  of  Pennsylvania.     1835. 

[Reported  4  Watts,  183.] 

Gibson,  C.  J.^  The  defendants  having  pleaded  a  release  to  the 
plaintiff's  declaration  for  a  legacy  and  the  plaintiff  having  replied 
perfraudem,  the  defendants  rejoin  that  the  release  was  exhibited  by 
them  in  the  orphan's  court,  and  allowed  by  that  court  as  a  decisive 
bar  to  exceptions  taken  by  the  plaintiff  to  their  administration  ac- 
count; and  the  question  raised  by  the  demurrer  is,  whether  the 
validity  of  the  release  has  passed  in  rem  judicatam.  The  law  of  the 
case,  with  its  distinctions,  has  been  compressed  into  the  dimensions 
of  a  nutshell,  by  Chief  Justice  De  Grey,  in  the  Duchess  of  Kings- 
ton's case,  11  St.  Tr.  261;  and  though  the  passage  is  a  trite  one, 
yet  as  it  could  not  otherwise  be  so  well  expressed,  it  is  proper  to  re- 
peat it  in  his  own  words.  "  From  the  variety  of  cases  in  respect  to 
judgments  being  given  in  evidence,"  said  the  chief  justice,  "  these 
two  distinctions  seem  to  follow  as  being  generally  true:  the  first, 
that  the  judgment  of  a  court  of  concurrent  jurischction  directly  upon 
the  point,  is,  as  a  plea,  a  bar  —  or  as  evidence,  conclusive,  between 
the  same  parties  on  the  same  matter  directly  in  question  in  another 
court;  secondly,  that  the  judgment  of  a  court  of  exclusive  juris- 
diction directly  upon  the  point,  is  in  like  mamier  conclusive  upon 
the  same  matter  between  the  same  parties  coming  incidentally  in 
question  in  another  court  for  a  different  purpose.  But  neither  the 
judgment  of  a  concurrent  or  exclusive  jurisdiction,  is  evidence  of 
any  matter  incidentally  cognizable,  nor  of  any  matter  to  be  inferred 
by  argument  from  the  judgment."  This  brief  but  comprehensive 
summary  furnishes  a  rule  for  every  case  that  any  complication  of 
circumstances  can  produce.  Now,  did  the  question  of  fraud  come 
before  the  orphan's  court  directly  or  incidentally  ?  Not  directly 
certainly;  for  that  court  had  jurisdiction  of  it  but  incidentally, 
and  not  to  entertain  an  action  whose  immediate  object  should  be 
to  ascertain  the  fact.  In  Blackham's  case,  1  Salk.  290,  the  defend- 
ant proved  that  the  goods,  for  the  conversion  of  which  the  action 
was  brought,  had  belonged  to  Mrs.  Blackham,  whose  administrator 

could  not  be  reviewed  by  a  court  of  appellate  jurisdiction.  Johnson  Company 
V.  Wharton,  152  U.  S.  252,  38  L.  ed.  429,  14  S.  Ct.  608. 

A  judgment  by  default  is  conclusive  as  to  the  matters  necessary  to  support 
the  judgment.  Last  Chance  Min.  Co.  v.  Tyler  Min.  Co.,  157  U.  S.  683,  39 
L.  cd.  859,  15  S.  Cfc.  733.  —  Ed. 

^  Only  the  ojjinion  of  the  court  is  given.  —  Ed. 


HIBSHMAN    V.    DULLEBAN  667 

he  then  was;  to  rebut  which,  the  plaintiff  proved  that  he  was  her 
husband;  whereupon  the  defendant  contended  that  the  marriage 
was  conclusively  negatived  by  the  grant  of  administration  to  him- 
self, in  preference  to  the  plaintiff,  her  pretended  husband.  But 
lord  Holt  said,  that  though  a  matter  directly  determined  by  the 
sentence  could  not  be  gainsaid,  yet  that  the  principle  has  regard  but 
to  a  point  directly  tried,  and  not  to  a  matter  collaterally  inferable 
from  it.  The  same  principle  was  recognized  by  the  king's  bench, 
in  Clues  v.  Bathurst,  Ca.  Temp.  Hardw.  12.  The  case  of  Rex  v. 
Vincent,  Stra.  481,  in  which  it  was  held,  that  the  production  of  a 
probate  by  a  prisoner  indicted  for  forging  a  will,  is  conclusive  for 
him,  has  been  repeatedly  overruled.  And  the  judgment  must  not 
only  have  been  direct,  but  conclusive  of  the  matter  adjudged,  in 
the  court  where  it  was  rendered;  for,  as  is  justly  remarked  by  Mr. 
Starkie,  part  two,  section  sixty-five,  if  it  did  not  decide  the  point 
there,  it  ought  not  to  decide  it  elsewhere.  On  all  these  grounds  the 
decree  of  the  orphan's  court  was  incompetent  to  affect  the  plaintiff 
in  his  cormmon  law  action.  The  validity  of  the  release  was  drawn 
into  contest  incidentally;  and  the  point  being  thus  incidentally 
decided  against  him,  can  no  more  prejudice  his  title  in  another 
court,  than  can  the  decision  of  a  surrogate  or  register  prejudice  the 
title  of  an  unsuccessful  claimant  of  administration  to  the  estate  of  a 
decedent.  Again,  the  point  was  not  actually,  or  at  least  neces- 
sarily, decided.  The  plaintiff's  exceptions  to  the  achninistration 
account,  were  also  the  exceptions  of  Henry  DuUeban's  trustees; 
and  whether  the  release  were  good  or  bad,  was  a  question  whose 
decision  could  not  supplant  a  decision  of  them  on  the  merits.  It 
did  not  supplant  it;  and  the  gratuitous  determination  of  a  point 
involving  the  question  of  fraud,  which  had  no  effect  there,  ought  to 
have  no  effect  here,  especially  to  deprive  the  plaintiff  of  a  trial  by 
jury. 

Judgment  affirmed. 

1  In  Misir  Raghobardial  v.  Rajah  Sheo  Baksh  Singh,  L.  R.  9  Indian  Ap- 
peals 197,  p.  203  the  court  says  (quoting  from  a  prior  decision)  that  "  in  order  to 
make  the  decision  of  one  Court  final  and  conclusive  in  another  Court,  it  must 
be  a  decision  of  a  Court  which  would  have  had  jurisdiction  over  the  matter  in 
the  subsequent  suit  in  which  the  decision  is  given  in  evidence  as  conclusive." 
See  Duchess  of  Kingston's  Case,  10  How.  St.  Tr.  355,  537,  3  Smith,  Leading 
Cases,  9th  Am.  ed.,  1998;  1  Van  Fleet,  Former  Adjudication,  sees.  2-5.—  Ed. 


668         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

DOYLE  V.   GORE. 
Supreme  Court  of  Montana.     1895. 

[Reported  15  Montana,  212.] 

Pemberton,  C.  J.  This  is  an  action  by  plaintiff  to  recover 
damages  claimed  to  have  been  sustained  by  him  on  account  of  an 
assault  and  battery  alleged  to  have  been  committed  by  defendant 
upon  plaintiff. 

The  case  was  tried  with  a  jury,  and  a  verdict  rendered  in  favor 
of  plaintiff  for  five  hundred  dollars.  Judgment  was  entered  thereon 
for  said  amount.  From  this  judgment,  and  an  order  of  the  court 
denying  a  new  trial,  the  defendant  appeals. 

It  appears  that,  after  the  commission  of  the  alleged  assault  and 
battery,  the  defendant  was  arrested  therefor,  and  tried  and  con- 
victed before  a  justice  of  the  peace.  In  the  trial  of  this  case  for 
damages  resulting  from  said  assault  and  battery,  the  court,  over 
the  objection  of  defendant,  permitted  the  plaintiff  to  introduce  in 
evidence  the  transcript  of  the  justice's  docket,  who  tried  the 
criminal  case  against  the  defendant.      This  is  assigned  as  error. 

In  1  Greenleaf  on  Evidence,  fifteenth  edition,  section  537,  it  is 
said:  "  Upon  the  foregoing  principles,  it  is  obvious  that,  as  a 
general  rule,  a  verdict  and  judgment  in  a  criminal  case,  though 
admissible  to  establish  the  fact  of  the  mere  rendition  of  the  judg- 
ment, cannot  be  given  in  evidence  in  a  civil  action,  to  establish  the 
facts  on  which  it  was  rendered." 

In  section  538  the  same  author,  speaking  of  a  case  exactly  like 
the  one  at  bar,  says:  "  But  if  he  were  convicted  of  the  offense,  and 
then  is  sued  in  trespass  for  the  assault,  the  record  in  the  former 
case  would  not  be  in  evidence  to  establish  the  fact  of  the  assault; 
for,  as  to  matters  involved  in  the  issue,  it  is  res  inter  alios  acta.'" 
(And  see  authorities  cited.) 

The  defendant  may  have  been  convicted  upon  perjured  or  in- 
competent testimony,  or  by  collusion,  or  his  conviction  may  have 
been  the  result  of  prejudice  on  the  part  of  the  justice  or  the  jury. 
In  this  case  the  introduction  of  this  evidence  may  have  been  very 
prejudicial  to  the  defendant.  Whether  or  not  the  defendant  com- 
mitted the  assault  and  battery  alleged  was  an  issue  in  the  case. 
By  the  justice's  transcript  the  plaintiff  claims  that  the  assault  and 
battery  was  shown,  leaving  the  jury  to  determine  only  the  amount 
of  damage  phiintiff  had  sustained  l)y  reason  thereof.  The  court 
gave  no  instruction  as  to  the  purpose  of  this  evidence.     Nor  does 


RIVERSIDE   LAND    &    IRRIGATING    COMPANY   V.    JENSEN 


669 


the  record  disclose  any  particular  purpose  for  which  it  was  admitted. 
But  accepting  plaintiff's  statement  in  his  brief  as  to  the  purpose 
of  its  introduction,  we  are  of  opinion  that  it  was  error  to  admit  it  in 
this  case.  It  certainly  did  prove,  or  tend  to  prove,  the  facts  upon 
which  judgment  of  the  justice  was  rendered.  Such  being  the 
inteuded  purpose  and  effect  of  the  evidence,  its  admission  was 

error. 

The  judgment  is  reversed  and  cause  remanded  for  a  new  trial. 

Reversed.^ 

De  Witt,  J.,  and  Hxint,  J.,  concur. 

RIVERSIDE  LAND   &  IRRIGATING  COMPANY  v. 

JENSEN,  Executrix,  et  al 

Supreme  Court  of  California.     1895. 
[Reported  108  California,  146.] 

The  defendant  in  the  present  action  was  executrix  of  the  last 
will  of  Cornelius  Jensen,  deceased,  and  the  devisee  thereunder  of 
the  land  the  title  to  which  was  sought  to  be  quieted.  The  further 
facts  are  stated  in  the  opinion  of  the  court. 

Van  Fleet,  J.^  Action  to  quiet  title.  Plaintiff  had  judgment, 
from  which  and  an  order  denying  her  motion  for  a  new  trial 
defendant  appeals. 

The  objection  of  defendant  to  the  uitroduction  in  evidence  of  the 
judgment-roll  in  the  action  of  Riverside  Land  &  Irrigating  Com- 
pany V.  Cornelius  Jensen  was  properly  overruled.  That  was  an 
action  brought  by  the  plaintiff  here  against  the  testator  and  pred- 
ecessor in  interest  of  this  defendant  to  quiet  plaintiff's  title  to 
certain  lands,  including  the  premises  in  controversy  in  this  action, 
and  in  which  final  judgment  was  entered  quieting  plaintiff's  title 
to  the  land  in  suit.  It  was  not  required  of  plaintiff  to  plead  said 
judgment  in  order  to  be  entitled  to  prove  it.  The  complaint  was  in 
the  usual  form  and  was  sufficient  (Rough  v.  Simmons,  65  Cal.  227; 
Heeser  v.  Miller,  77  Cal.  192;   Castro  y.  Barry,  79  Cal.  447);  and 

1  Compare  Brown  v.  Swineford,  44  Wis.  282,  28  Am.  Rep.  582;  Luther  v. 
Shaw,  (Wis.,  1914)  147  N.  W.  18. 

The  judgment  is  a  bar  as  to  those  who,  though  not  parties  to  the  record,  are 
nevertheless  real  parties.  Souffront  v.  La  Compagnie  des  Sucreries  de  Porto 
Rico,  217  U.  S.  475,  54  L.  ed.  846,  30  S.  Ct.  608;  Weld  v.  Clarke,  209  Mass. 
9,  95N.  E.  651.  — Ed. 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


670         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

such  an  allegation  would  have  been  improper,  as  it  is  never  neces- 
sary in  such  an  action  to  plead  deraignment  of  title.  That  is 
matter  of  evidence  purely.  While  as  a  general  rule  it  may  be 
necessary  to  plead  estoppel  by  former  judgment,  that  rule  does  not 
apply  when,  as  under  our  system,  no  opportunity  is  afforded  the 
plaintiff  to  plead  it.  It  had  no  proper  place  in  the  complaint,  but 
plaintiff  could  not  be  precluded  from  the  benefit  of  it  as  matter 
of  evidence  on  that  ground.  He  was  entitled  to  give  it  in  evidence 
with  the  same  effect  as  if  given  an  opportunity  to  plead  it  specially. 

Clink  V.  Thurston,  47  Cal.  27;  Wixson  v.  Devine,  67  Cal.  345 

Judgment  and  order  affirmed. 
Harrison,  J.,  and  Garoutte,  J.,  concurred. 


DULL  V.  BLACKMAN. 

Supreme  Court  of  the  United  States.     1898. 

[Reported  1G9  United  States,  243.] 

The  facts  in  this  case  are  as  follows:  On  June  25,  1889,  plaintiff 
in  error,  Daniel  Dull,  being  the  owner  of  the  tract  of  land  in  con- 
troversy, conveyed  the  same  by  warranty  deed  executed  by 
himself  and  wife  to  John  E.  Blackman.  Blaclonan,  on  August 
2,  1889,  made  a  deed  of  the  same  land  to  George  F.  Wright  as 
security  for  moneys  to  be  advanced  by  Wright.  On  the  29th  of 
February,  1892,  Blaclonan  commenced  this  suit  in  the  District 
Court  of  Pottawattamie  County,  Iowa,  to  compel  a  reconveyance 
by  Wright  on  the  ground  of  his  failure  to  advance  any  money. 
Prior  thereto,  and  on  January  30,  1892,  Blackman  had  executed  a 
deed  of  the  land  to  Edward  Phelan,  which  conveyance  was  at  first 
conditional  but  by  agreement  signed  by  the  parties  on  September 
15,  1892,  was  made  absolute.  On  the  17th  of  September,  1892, 
Phelan  filed  his  petition  of  intervention,  setting  forth  his  rights  in 
the  matter  under  the  deed  of  January  30  and  the  agreement  of 
September  15,  and  also  making  plaintiffs  in  error  and  others  defend- 
ants, alleging  that  they  claimed  certain  interests  in  the  property, 
and  praying  a  decree  quieting  his  title  as  against  all.  On  January 
24,  1893,  plaintiff's  counsel  withdrew  his  appearance  for  Blackman, 
and,  upon  his  application,  was  allowed  to  prosecute  the  action  in 
the  name  of  Blackman  for  and  in  behalf  of  Phelan,  the  intervenor. 
On  February  2,  1893,  the  plaintiff's  in  error  appeared  in  the  suit  and 
filed  an  answer  denying  all  the  allegations  in  plaintiff's  petition  and 


DULL   V.    BLACKMAN  671 

in  the  petition  of  intervention.  On  the  15th  of  that  month  they 
filed  an  amended  answer  and  a  cross  petition,  in  which  they  set 
up  that  Blackman  had  obtained  his  deed  from  them  by  certain 
false  representations,  and  that  a  suit  was  pending  in  the  Supreme 
Court  of  the  State  of  New  York,  in  which  Daniel  Dull  was  plaintiff, 
and  Blackman,  Wright,  Phelan  and  others  were  defendants,  in 
which  the  same  issues  were  made  and  the  same  relief  sought  as  in 
the  case  at  bar.  On  May  29  they  filed  an  amendment  to  their 
answer  and  cross  petition  setting  forth  that  the  case  pending  in  the 
Supreme  Court  of  New  York  had  gone  to  decree,  and  attached  a 
copy  of  that  decree.  The  suit  in  the  Supreme  Court  of  the  State 
of  New  York  was  commenced  on  the  3d  of  November,  1892. 
Blackman  was  served  personally  within  the  limits  of  that  State, 
but  the  other  defendants  therein,  Wright,  Phelan  and  Duifie  their 
counsel,  were  served  only  by  delivering  to  them  in  Omaha,  Ne- 
braska, a  copy  of  the  complaint  and  summons.  No  appearance 
was  made  by  them.  Notwithstanding  which  the  decree  was 
entered  against  them  as  against  Blaclanan,  and  was  a  decree 
establishing  the  title  of  Daniel  Dull ,  setting  aside  the  deed  made  by 
him  and  his  wife  to  Blackman,  and  enjoining  the  several  defend- 
ants from  further  prosecuting  the  action  in  the  Iowa  court.  After 
certain  other  pleadings  and  amendments  thereto  had  been  made 
the  case  in  the  District  Court  of  Pottawattamie  County,  Iowa, 
came  on  for  hearing,  and  upon  the  testimony  that  court  entered  a 
decree  quieting  Phelan's  title  to  the  land  as  against  any  and  all 
other  parties  to  the  suit,  subject,  however,  to  certain  mortgage 
interests  which  were  recognized  and  protected,  but  which  are  not 
in  any  way  pertinent  to  this  controversy  between  Dull  and  wife 
and  the  defendants  in  error.  On  appeal  to  the  Supreme  Court  of 
the  State  such  decree  was,  on  January  21,  1896,  affirmed,  from 
which  judgment  of  affirmance  plaintiffs  in  error  have  brought  the 
case  here. 

Brewer,  J.^  The  contention  of  the  plaintiffs  in  error,  and  in  it 
is  the  only  question  of  a  Federal  nature  presented  by  the  record,  is 
that  the  courts  in  Iowa  did  not  give  that  full  faith  and  credit  to  the 
decree  rendered  in  the  Supreme  Court  of  the  State  of  New  York  to 
which  under  the  Constitution  of  the  United  States  it  was  entitled. 
From  the  foregoing  statement  of  facts  it  appears  clearly  that 
although  the  suit  in  the  Iowa  court  was  originally  commenced  by 
Blackman,  and  though  his  name  was,  under  the  practice  prevailing 
in  Iowa,  never  dropped  from  the  title  of  the  case,  it  was  by  reason 

^  A  part  of  the  opinion  is  omitted.  —  Ed. 


672         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

of  the  intervention  of  Phelan  and  the  orders  of  the  court  simply- 
prosecuted  in  his  name  for  the  benefit  of  Phelan,  the  intervenor; 
that  this  intervention  of  Phelan,  and  his  petition  in  support  thereof, 
making  the  plaintiffs  in  error  and  others  defendants  thereto,  was 
filed  on  the  17th  of  September,  1892,  nearly  two  months  before  the 
commencement  of  the  suit  in  New  York.  It  also  appears  that 
while  Blackman,  Phelan,  Wright  and  others  were  named  as  parties 
defendant  to  the  suit  in  New  York,  Blackman  was  the  only  one 
served  within  the  territorial  jurisdiction,  and  the  only  one  appear- 
ing in  that  court.  The  other  defendants  were  attempted  to  be 
brought  in  by  service  of  summons  in  the  State  of  Nebraska,  and 
never  entered  any  appearance  in  the  suit.  It  is  true  the  decree  in 
the  Supreme  Court  of  the  State  of  New  York  was  entered  before  the 
trial  of  this  case  in  the  District  Court  of  Iowa,  and  the  record  of 
the  proceedings  in  the  New  York  court  was  in  evidence  at  the  trial 
in  the  Iowa  court.  It  further  appears  from  the  findings  of  fact 
made  by  the  trial  court  in  Iowa,  and  sustained  by  the  Supreme 
Court  of  that  State,  that  the  entire  right  and  title  had  passed  from 
Blackman  to  Phelan  in  September,  1892,  nearly  two  months  before 
the  commencement  of  the  suit  in  New  York. 

Upon  these  facts  we  remark  that  as  the  land,  the  subject-matter 
of  this  controversy,  was  situate  in  Iowa,  litigation  in  respect  to  its 
title  belonged  properly  to  the  courts  within  that  State,  EUenwood  v. 
Marietta  Chair  Co.,  158  U.  S.  105,  107,  although  if  all  the  parties 
interested  in  the  land  were  brought  personally  before  a  court  of 
another  State,  its  decree  would  be  conclusive  upon  them  and  thus 
in  effect  determine  the  title.  The  suit  in  New  York  was  one  purely 
in  personam.  Any  decree  therein  bound  simply  the  parties  before 
the  court  and  their  privies,  and  did  not  operate  directly  upon  the 
lands.  .  .  . 

We  remark  again  that  while  a  judgment  or  decree  binds  not 
merely  the  party  or  parties  subject  to  the  jurisdiction  of  the  court 
but  also  those  in  privity  with  them,  yet  that  rule  does  not  avail  the 
plaintiffs  in  error,  for  Phelan  acquired  his  rights  prior  to  the 
institution  of  the  suit  in  New  York  and  was  therefore  not  privy  to 
that  judgment. 

"It  is  well  understood,  though  not  usually  stated  in  express 
terms  in  works  upon  the  subject,  that  no  one  is  privy  to  a  judgment 
whose  succession  to  the  rights  of  property  thereby  affected,  oc- 
curred previously  to  the  institution  of  the  suit.  A  tenant  in  pos- 
session prior  to  the  commencement  of  an  action  of  ejectment 
cannot  therefore  be  lawfully  dispossessed  by  the  judgment  unless 


BRIGHAM   V.    FAYERWEATHER  673 

made  a  party  to  tlie  suit.  ...  No  grantee  can  be  bound  by  any 
judgment  in  an  action  commenced  against  his  grantor  subsequent 
to  the  grant,  otherwise  a  man  having  no  interest  in  property  could 
defeat  the  estate  of  the  true  o^vner.  The  foreclosure  of  a  mort- 
gage, or  of  any  other  lien,  is  wholly  inoperative  upon  the  rights  of 
any  person  not  a  party  to  the  suit,  whether  such  person  is  a  grantee, 
judgment  creditor,  attachment  creditor,  or  other  lienholder." 
Freeman  on  Judgments,  (1st  ed.,)  §  162. 

As  Phelan  was  not  brought  within  the  jurisdiction  of  the  New 
York  court,  and  as  the  suit  in  that  court  was  instituted  nearly  two 
months  after  he  had  acquired  full  title  to  the  real  estate,  the 
decree  of  that  court  did  not  bind  him  as  a  party,  nor  bind  him  as  in 
privity  with  Blackman,  his  grantor.  The  Supreme  Court  of  Iowa 
did  not  err  in  so  holding. 

The  decree  is  Affirmed} 


BRIGHAM  V.   FAYERWEATHER  &   another. 

Supreme  Judicial  Court  of  Massachusetts.     1886. 

[Reported  140  Massachusetts,  411.] 

Bill  in  equity,  filed  May  21,  1884,  to  have  declared  void  a 
mortgage  deed  executed  by  Azubah  Brigham,  the  plaintiff's  tes- 
tator, on  the  ground  that  said  Azubah  Brigham  at  the  date  of  the 
execution  of  said  deed  was  not  of  sufficient  mental  capacity  to 
execute  the  deed.  The  bill  alleged,  and  the  answer  admitted, 
that  the  plaintiff  derived  his  title  from  the  will  of  Azubah  Brigham. 
The  case  was  heard  before  Aldrich,  J.,  who  allowed  a  bill  of  excep- 
tions, in  substance  as  follows: 

The  following  issue  was  submitted  to  the  jury:  Was  Azubah 
Brigham  of  sufficient  mental  capacity,  at  the  time  the  mortgage 
deed  referred  to  in  the  bill  was  executed,  to  transact  the  business 
of  executing  such  deed  ? 

1  Doctor  Jack  Pot  Min.  Co.  v.  Marsh,  216  Fed.  261,  accord. 
Purchasers  Pendente  Lite.  In  the  absence  of  statute,  a  purchaser  of 
property  pending  suit  in  which  the  title  thereto  is  involved  takes  subject  to  the 
judgment  or  decree  wliich  may  be  rendered  in  the  suit  against  the  vendor. 
See  Sprague  v.  Stevens,  (R.  I.,  1914)  91  Atl.  43,  and  cases  cited;  2  Black, 
Judgments,  2d  ed.,  sec.  550;  2  Van  Fleet,  Former  Adjudication,  sees.  539- 
550. 

Statutes  now  generally  provide  for  liUng  a  notice  in  case  of  actions  brought 
to  recover  a  judgment  aifecting  real  property.  See  N.  Y.  C.  C.  P.,  sec.  1670; 
Jorgenson  v.  Minneapolis  &  St.  L.  Ry.  Co.,  25  Minn.  206.  —  Ed. 


674         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

The  mortgage  deed  was  executed  on  June  15,  1882.  The  mort- 
gagor died  on  December  6,  1883,  leaving  a  last  will,  executed  on 
October  11,  1882,  by  the  provisions  of  which  the  plaintiff  was  made 
residuary  devisee  and  legatee,  and  he  was  also  one  of  the  executors 
of  the  will. 

The  defendants  offered  evidence  tending  to  show  that  the 
mental  capacity  of  the  mortgagor  was  no  less  on  June  15,  18S2, 
than  on  October  11,  1882. 

The  defendants  offered  in  evidence  the  petition  of  the  plaintiff 
for  the  probate  of  said  will  in  the  Probate  Court  for  the  county  of 
Worcester;  and  as  evidence  of  the  mental  soundness  and  capacity 
of  the  mortgagor  at  the  date  of  the  \vill,  four  months  after  the 
execution  of  the  mortgage,  they  offered  the  adjudication  of  the 
Probate  Court  admitting  the  will  to  probate.  The  evidence  was 
excluded,  not  on  the  ground  that  the  date  of  the  execution  of  the 
will  was  too  remote  from  the  date  of  the  deed,  but  on  the  ground 
that  the  adjudication  of  the  Probate  Court  was  not  admissible  for 
the  purpose  for  which  it  was  offered,  on  the  issue  before  the  jury; 
and  the  defendants  excepted. 

Dr.  William  Curtis,  one  of  the  executors  of  the  will,  was  a  witness 
for  the  plaintiff.  He  testified  that  he  was  the  family  physician  of 
Mrs.  Brigham,  the  mortgagor,  to  the  time  of  her  death.  He 
testified  to  various  facts,  and  to  his  opinion  that  she  was  disqualified 
from  doing  such  business  as  the  execution  of  said  mortgage  deed  at 
the  time  she  signed  it,  by  reason  of  her  mental  unsoundness.  The 
first-named  defendant,  after  the  appointment  of  Curtis  as  executor, 
in  April  or  May,  1884,  had  a  talk  with  him  about  the  said  mort- 
gage. The  defendants  offered  to  show  by  the  evidence  of  said 
defendant,  that,  in  said  talk  in  May  or  April,  1884,  Curtis  did  not 
state  or  contend,  and  never  had  stated  or  contended  to  him,  prior 
to  the  bringing  of  this  suit,  that  the  mortgagor  was  incompetent 
to  execute  this  mortgage  when  it  was  made.  This  evidence  was 
excluded,  and  the  defendants  excepted. 

The  jury  answered  the  question  submitted  to  them  in  the 
negative;  and  the  defendants  alleged  exceptions. 

Holmes,  J.  A  judgment  in  rem  is  an  act  of  the  sovereign 
power;  and,  as  such,  its  effects  cannot  be  disputed,  at  least  within 
tl.e  jurisdiction.  If  a  competent  court  declares  a  vessel  forfeited, 
or  orders  it  sold  free  of  all  claims,  or  divorces  a  couple,  or  estab- 
lishes a  will  under  statutes  like  our  Pub.  Sts.  c.  127,  §  7,  a  para- 
mount title  is  passed,  the  couple  is  divorced,  the  will  is  established, 
as  against  all  the  world,   whether  parties  or  not,   l^ecause  the 


BRIGHAM    V.    FAYERWEATHER  675 

sovereign  has  said  that  it  shall  be  so.  Hughes  v.  Cornelius,  2  Show. 
232;  S.  C.  T.  Raym.  473;  Skin.  59;  Carth.  32.  Noell  v.  Wells, 
1  Lev.  235.  Scott  v.  Shearman,  2  W.  Bl.  977.  The-  Helena,  4 
Rob.  (Adm.)  3.  Leonard  v.  Leonard,  14  Pick.  280.  McClurg  v. 
Terry,  6  C.  E.  Green,  225.  But  the  same  is  true  when  the  judg- 
ment is  that  A  recover  a  debt  of  B.  The  public  force  is  pledged  to 
collect  the  debt  from  B,  and  no  one  within  the  jurisdiction  can 
oppose  it.  And  it  does  not  follow  in  the  former  case  any  more 
than  in  the  latter,  nor  is  it  true,  that  the  judgment,  because  con- 
clusive on  all  the  world  in  what  we  may  call  its  legislative  effect,  is 
equally  conclusive  upon  all  as  an  adjudication  of  the  facts  upon 
which  it  is  grounded.  On  the  contrary,  those  judgments,  such  as 
sentences  of  prize  courts,  to  which  the  greatest  effect  has  been  given 
in  collateral  proceedings,  are  said  to  be  conclusive  evidence  of  the 
facts  upon  which  they  proceed  only  against  parties  who  were 
entitled  to  be  heard  before  they  were  rendered.  The  Mary,  9 
Cranch,  126,  146.  Salem  v.  Eastern  Railroad,  98  Mass.  431,  449. 
Baxter  v.  New  England  Ins.  Co.,  6  Mass.  277,  286.  Whitney  v. 
Walsh,  1  Cush.  29. 

We  may  lay  on  one  side,  then,  any  argument  based  on  the  mis- 
leading expression  that  all  the  world  are  parties  to  a  proceeding  in 
rem.  This  does  not  mean  that  all  the  world  are  entitled  to  be 
heard,  and  as  strangers  in  interest  are  not  entitled  to  be  heard, 
there  is  no  reason  why  they  should  be  bound  by  the  findings  of 
fact,  although  bound  to  admit  the  title  or  status  which  the  judg- 
ment establishes. 

Still,  the  cases  last  cited  show  that  some  judgments  in  rem  are 
conclusive  evidence  of  the  facts  adjudicated,  in  favor  of  a  stranger, 
as  against  a  party.  And  if  the  analogy  is  to  be  applied  to  all  judg- 
ments which  create  or  change  a  status  or  a  title,  it  would  apply 
here.  For  the  plaintiff  was  a  party  to  the  decree  establishing  the 
will,  and  that  decree  necessarily  proceeded  on  the  ground  that  the 
testator  possessed  sufficient  capacity  to  make  the  will.  But  these 
cases  cannot  be  taken  to  lay  do^vn  a  general  principle. 

The  reasons  given  for  the  decisions  are  not  that  the  conclusion 
follows  as  a  necessary  effect  of  judgments  in  rem  merely  as  such, 
but  are  special  reasons  of  convenience  or  construction.  In  The 
Mary,  9  Cranch,  126,  145,  the  doctrine  as  to  sentences  of  prize 
courts  is  said  to  rest  on  "  the  propriety  of  leaving  the  cognizance 
of  prize  questions  exclusively  to  courts  of  prize  jurisdiction;  the 
very  great  inconvenience,  amounting  nearly  to  an  impossibility,  of 
fully  investigating  such  cases  in  a  court  of  common  law;   and  the 


676         EFFECT  OF  JUDGMENT  ON  CONTROVERSIES 

impropriety  of  revising  the  decisions  of  the  maritime  courts  of 
other  nations,  whose  jurisdiction  is  coordinate  throughout  the 
world."  In  Baxter  v.  New  England  Ins.  Co.,  6  Mass.  277,  300,  and 
Robinson  v.  Jones,  8  Mass.  536,  540,  the  effect  of  a  sentence  in  a 
subsequent  action  on  a  pohcy  of  insurance  is  referred  to  the  settled 
construction  of  mercantile  contracts.  In  Lothian  v.  Henderson, 
3  B.  &  P.  499,  545,  the  doctrine  seems  to  be  thought  to  stand  on 
practice  and  authority,  rather  than  on  principle.  See  Castrique  v. 
Imrie,  L.  R.  4  H.  L.  414,  434. 

The  general  principle  is  stated  with  substantial  correctness  by 
Sir  James  F.  Stephen,  in  his  work  on  Evidence,  art.  42:  "  State- 
ments contained  in  judgments  as  to  the  facts  upon  which  the  judg- 
ment is  based  are  deemed  to  be  irrelevant  as  between  strangers,  or 
as  between  a  party,  or  privy,  and  a  stranger,  except  in  the  case  of 
judgments  of  courts  of  admiralty  condemning  a  ship  as  prize,"  and 
some  other  judgments  of  a  kindred  nature. 

Apart  from  precedent,  there  seems  to  be  no  satisfactory  ground 
for  treating  the  probate  of  a  will  as  evidence  of  the  testator's 
mental  capacity  on  a  collateral  issue.  For  except  in  the  com- 
paratively small  number  of  cases  where  the  probate  of  the  will  is 
opposed,  the  investigation  of  the  fact  is  necessarily  only  formal. 
Still  less  do  we  see  why,  if  the  probate  is  not  evidence  against  a 
party  who  had  no  right  to  be  heard,  he  should  hold  the  executor 
bound  by  it  when  he  himself  is  free.  Ordinarily,  estoppels  by 
judgment  are  mutual.  The  fact  can  be  tried  in  the  Superior  Court 
as  well  as  in  the  Probate  Court,  and  was  actually  tried  in  this  very 
case.  Thus  the  chief  reason  offered  for  the  effect  of  prize  sentences 
is  removed. 

One  or  two  cases  cited  by  the  defendant  may  need  a  word  of 
explanation.  It  has  been  held,  in  a  suit  by  an  administrator,  that 
letters  of  administration  are  conclusive  proof  of  the  kitestate's 
death,  unless  the  defendant  pleads  in  abatement.  Newman  v. 
Jenkins,  10  Pick.  515.  And  elsewhere  it  has  been  decided,  in  a 
suit  where  the  plaintiff's  title  was  derived  from  an  administrator's 
sale,  that  the  letters  are  -prima  facie  evidence  of  the  death.  Jeffers 
V.  Radcliff,  10  N.  H.  242.  Tisdale  v.  Connecticut  Ins.  Co.,  26  Iowa, 
170;  S.  C.  28  Iowa,  12.  But  in  these  cases  the  letters  are  not 
introduced  as  evidence  on  a  collateral  issue.  They  are  the  neces- 
sary foundation  of  the  plaintiff's  title.  They  are  not  put  in  to 
prove  the  death,  but  the  death  is  denied  in  order  to  invalidate  the 
letters.  The  fact  of  death  is  immaterial,  except  as  bearing  on  the 
jurisdiction  of  the  court  to  issue  them.     It  may  well  be  held  that, 


BRIGHAM   V.    FAYERWEATHER 


677 


where  the  question  comes  up  in  this  way,  such  a  decree  will  be 
presumed,  prima  facie,  to  have  been  within  the  jurisdiction  of  the 
court  that  made  it,  so  far  as  this  fact  is  concerned,  although  it  has 
been  held  otherwise  in  England.  Aloons  v.  De  Bernales,  1  Russ. 
301,  307.  See  Thompson  v.  Donaldson,  3  Esp.  63.  But  it  is 
entirely  consistent  with  the  New  Hampshire  and  Iowa  decisions  to 
hold  that,  in  collateral  proceedings,  the  issue  of  letters  of  admin- 
istration is  not  even  prima  facie  evidence  of  death.  Carroll  v. 
Carroll,  60  N.  Y.  121.  Mutual  Benefit  Ins.  Co.  v.  Tisdale,  91  U.  S. 
238.  See  Blackham's  case,  1  Salk.  290;  French  v.  French,  Dick. 
268;  Spencer  v.  Williams,  L.  R.  2  P.  &  D.  230.  These  cases  very 
strongly  sustain  the  conclusion  which  we  have  reached.  In  the 
case  at  bar,  the  plaintiff's  title  under  the  will  was  admitted  by  the 
answer,  and  if  it  had  not  been,  the  testator's  sanity  or  insanity  did 
not  affect  it,  because  it  did  not  affect  the  jurisdiction  of  the  court. 

If  the  defendant  as  well  as  the  plamtiff  had  been  a  party  to  the 
probate  of  the  ^\ill,  a  different  question  would  arise.  See  Barrs  v. 
Jackson,  1  PhU.  582,  reversing  S.  C.  1  Y.  &  C.  Ch.  585;  Doglioni  v. 
Crispin,  L.  R.  1  H.  L.  301,  311,  314;  Burlen  v.  Shannon,  99  Mass. 
200,  203;  Morse  v.  Elms,  131  Mass.  151,  152.  But  the  defendant 
was  not  a  party  m  the  sense  that  he  was  entitled  to  be  heard,  or  to 
take  an  appeal,  and  unless  he  had  that  right,  he  was  not  concluded 
by  the  adjudication  of  facts,  as  has  been  shown. 

It  is  suggested  that  the  plaintiff's  petition  presentmg  the  will  for 
probate  was  competent  as  an  achnission.  But  we  do  not  thmk 
that  any  question  except  the  effect  of  the  adjudication  appears  by 
the  exceptions  to  have  been  presented  to  the  court,  or  to  have  been 
ruled  upon  by  it,  even  if  the  petition  would  have  been  admissible 
on  that  ground,  which  we  do  not  intimate.     See  Page  v.  Page,  15 

Pick.  368.  .  .T. 

The  bill  of  exceptions  does  not  show  that  the  testimony  ot  1  ayer- 
weather  was  improperly  rejected.  The  mere  fact  that  Dr.  Curtis 
had  had  a  talk  about  the  mortgage  does  not  show  that  the  talk  was 
of  such  a  nature  as  to  call  for  a  denial  of  the  mortgagor's  capacity, 
and  therefore  the  fact  that  he  did  not  deny  it  would  not  tend  to 
contradict  or  impeach  his  testimony  at  the  trial  that  the  mortgagor 
was  incompetent.     Perry  v.  Breed,  117  Mass.  155,  165. 

Exceptions  overruled} 

1  See  BaUantyne  v.  Mackinnon,  [1896]  2  Q.  B.  455.  —  Ed. 


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